Newsletter

## The Human Right To Water

By Barrister Elvis Ajeh

“The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”— General Comment 15 on the right to water. ... Here is what this means in effect.
• Sufficient (Quantity of Water); how much water per person/day does the human right to water guarantee as a minimum? General Comment No. 15 indicates that there should be sufficient water for drinking, food preparation, and personal and household hygiene. These uses will require 20liters per person per day basic level.
• Safe and Acceptable (quality of Water); Water must be safe for drinking and other household uses i.e. free from health hazards such as microorganisms, chemical substances, and radiological hazards.. It must also be acceptable in terms of colour, taste and odour so that individuals will choose this water.
•Accessible and Affordable; everyone must have safe and easy access to adequate facilities and services in order that clean drinking-water is secured and useable and at an affordable cost. What is considered “affordable” in relation to a person’s income? No household should spend more than 3% of its income to meet its water and sanitation needs (UN Human Development Report 2006).
Misconceptions About The Right To Water.
First misconception: that water and water and sanitation services must be provided free to all users.
Second misconception: The human rights to water and sanitation prohibit private sector participation.
Third misconception: The human rights to water and sanitation mean that everyone is entitled to a tap and flush toilet tomorrow.
Forth misconception: That every dwelling must be served by a direct connection to water distribution and sewerage systems even where this is not financially feasible.
Human Rights Based Water Management System
The human rights based approach aims to ensure that all development activities further the realization of human rights, which involves strengthening the capacity of rights-holders and duty-bearers.
The rights-based approach is aimed at facilitating a process whereby the citizen is empowered to hold the state accountable to honour their human rights and legal entitlements. Adopting a rights-based approach, therefore, involves not only focusing on the content, but also on the process through which these rights are realised.
Three Components;
According to SDC’s human rights policy, a human rights based approach includes three key elements:
1. Use the standards of the international human rights framework as a reference;
2. Integrate key human rights principles, namely nondiscrimination and equality, inclusive participation, accountability and the rule of law, universality and indivisibility into strategies, programmes and policies;
3. Empower right-holders to claim their rights and strengthen capacities of duty-bearers to meet their obligations.
Focus is on identifying certain essential and basic needs of people such as food, health livelihood, - and water, not just as needs but as rights, and working towards their realization. These rights belong to a person, not by virtue of his/her social acceptability/contribution, citizenship, gender, age or any other criterion, but purely by virtue of being a human being.
Empower rights holders;
Support users in invoking their rights and make an active contribution towards their fulfilment, in particular by promoting:
Active participation and ownership of water users in the selection, design and implementation of water and sanitation projects, including providing the option of community management of development projects and services where appropriate;
Focus on women and poor, disadvantaged and marginalized groups in water and sanitation projects and programmes;
Building on and strengthening traditional water management systems where possible, so as to strengthen community participation.
TOWARD GREATER REALISATION OF THE RIGHT TO WATER
Human Rights Approach; The Solution
The human right to water sees users as citizens and not as passive recipients, empowering them to genuinely participate in decision-making processes.
The human rights based approach to water calls for the prioritisation of access to basic water and sanitation services for all, using available resources in a pro-poor manner,
The human rights approach helps to identify situations of discrimination or neglect of marginalised groups, and build the political will to change it.
Sustainability Community Involvement and ownership.
Contribution to the cost.
Continues education.
Monitoring and Evaluation and feedback.
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## Non-discrimination in economic, social and cultural rights

By Barrister Elvis Ajeh

Discrimination undermines the fulfilment of economic, social and cultural rights for a significant proportion of the world’s population. Economic growth has not, in itself, led to sustainable development, and individuals and groups of individuals continue to face socio-economic inequality, often because of entrenched historical and contemporary forms of discrimination.
Non-discrimination and equality are fundamental components of international human rights law and essential to the exercise and enjoyment of economic, social and cultural rights. Article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights(the Covenant) obliges each State party “to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
The principles of non-discrimination and equality are recognized throughout the Covenant. The preamble stresses the “equal and inalienable rights of all” and the Covenant expressly recognizes the rights of “everyone” to the various Covenant rights such as, inter alia, the right to work, just and favourable conditions of work, trade union freedoms, social security, an adequate standard of living, health and education and participation in cultural life.
The Covenant also explicitly mentions the principles of non-discrimination and equality with respect to some individual rights. Article 3 requires States to undertake to ensure the equal right of men and women to enjoy the Covenant rights and article 7 includes the “right to equal remuneration for work of equal value” and “equal opportunity for everyone to be promoted” in employment. Article 10 stipulates that, inter alia, mothers should be accorded special protection during a reasonable period before and after childbirth and that special measures of protection and assistance should be taken for children and young persons without discrimination. Article 13 recognizes that “primary education shall be compulsory and available free to all” and provides that “higher education shall be made equally accessible to all”.
The preamble, Articles 1, paragraph 3, and 55, of the Charter of the United Nations and article 2, paragraph 1, of the Universal Declaration of Human Rights prohibit discrimination in the enjoyment of economic, social and cultural rights. International treaties on racial discrimination, discrimination against women and the rights of refugees, stateless persons, children, migrant workers and members of their families, and persons with disabilities include the exercise of economic, social and cultural rights,1 while other treaties require the elimination of discrimination in specific fields, such as employment and education.2 In addition to the common provision on equality and non-discrimination in both the Covenant and the International Covenant on Civil and Political Rights, article 26 of the International Covenant on Civil and Political Rights contains an independent guarantee of equal and effective protection before and of the law.
The Committee on Economic, Social and Cultural Rights has considered the application of the principle of non-discrimination to specific Covenant rights relating to housing, food, education, health, water, authors’ rights, work and social security. See notably, general comment No. 4 (1991): The right to adequate housing; general comment No. 7 (1997): The right to adequate housing: forced evictions (art. 11, para. 1); general comment No. 12 (1999): The right to adequate food; general comment No. 13 (1999): The right to education (art. 13); general comment No. 14 (2000): The right to the highest attainable standard of health (art. 12); general comment No. 15 (2002): The right to water (arts. 11 and 12); general comment No. 17 (2005): The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (art. 15, para. 1 (c); general comment No. 18 (2005): The right to work (art. 6); and general comment No. 19 (2008): The right to social security.
SCOPE OF STATE OBLIGATIONS
In order for States parties to “guarantee” that the Covenant rights will be exercised without discrimination of any kind, discrimination must be eliminated both formally and substantively:
Formal discrimination: Eliminating formal discrimination requires ensuring that a State’s constitution, laws and policy documents do not discriminate on prohibited grounds; for example, laws should not deny equal social security benefits to women on the basis of their marital status;
Substantive discrimination: Merely addressing formal discrimination will not ensure substantive equality as envisaged and defined by article 2, paragraph 2. The effective enjoyment of Covenant rights is often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination. Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations.
Both direct and indirect forms of differential treatment can amount to discrimination under article 2, paragraph 2, of the Covenant:
Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground; e.g. where employment in educational or cultural institutions or membership of a trade union is based on the political opinions of applicants or employees. Direct discrimination also includes detrimental acts or omissions on the basis of prohibited grounds where there is no comparable similar situation (e.g. the case of a woman who is pregnant);
Indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration certificate for school enrolment may discriminate against ethnic minorities or non-nationals who do not possess, or have been denied, such certificates.
Private sphere
Discrimination is frequently encountered in families, workplaces, and other sectors of society. For example, actors in the private housing sector (e.g. private landlords, credit providers and public housing providers) may directly or indirectly deny access to housing or mortgages on the basis of ethnicity, marital status, disability or sexual orientation while some families may refuse to send girl children to school. The State must therefore adopt measures, which should include legislation, to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds.
Systemic discrimination
The Committee has regularly found that discrimination against some groups is pervasive and persistent and deeply entrenched in social behaviour and organization, often involving unchallenged or indirect discrimination. Such systemic discrimination can be understood as legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups.
Permissible scope of differential treatment
Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects. A failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all resources that are at the State party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority.
PROHIBITED GROUNDS OF DISCRIMINATION
Article 2, paragraph 2, lists the prohibited grounds of discrimination as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The inclusion of “other status” indicates that this list is not exhaustive and other grounds may be incorporated in this category.
“Race and colour”
Discrimination on the basis of “race and colour”, which includes an individual’s ethnic origin, is prohibited by the Covenant as well as by other treaties including the International Convention on the Elimination of Racial Discrimination. The use of the term “race” in the Covenant or the present general comment does not imply the acceptance of theories which attempt to determine the existence of separate human races.
Sex
The Covenant guarantees the equal right of men and women to the enjoyment of economic, social and cultural rights. Since the adoption of the Covenant, the notion of the prohibited ground “sex” has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes, prejudices and expected roles, which have created obstacles to the equal fulfilment of economic, social and cultural rights. Thus, the refusal to hire a woman, on the ground that she might become pregnant, or the allocation of low-level or part-time jobs to women based on the stereotypical assumption that, for example, they are unwilling to commit as much time to their work as men, constitutes discrimination. Refusal to grant paternity leave may also amount to discrimination against men.
Language
Discrimination on the basis of language or regional accent is often closely linked to unequal treatment on the basis of ethnic origin. Language barriers can hinder the enjoyment of many Covenant rights, including the right to participate in cultural life as guaranteed by article 15 of the Covenant. Therefore, information about public services and goods, for example, should also be available, as far as possible, in languages spoken by minorities, the State should ensure that any language requirements relating to employment and education are based on reasonable and objective criteria.
Religion
This prohibited ground of discrimination covers the profession of religion or belief of one’s choice (including the non-profession of any religion or belief), that may be publicly or privately manifested in worship, observance, practice and teaching. For instance, discrimination arises when persons belonging to a religious minority are denied equal access to universities, employment, or health services on the basis of their religion.
Political or other opinion
Political and other opinions are often grounds for discriminatory treatment and include both the holding and not-holding of opinions, as well as expression of views or membership within opinion-based associations, trade unions or political parties. Access to food assistance schemes, for example, must not be made conditional on an expression of allegiance to a particular political party.
Property
Property status, as a prohibited ground of discrimination, is a broad concept and includes real property (e.g. land ownership or tenure) and personal property (e.g. intellectual property, goods and chattels, and income), or the lack of it.
Birth
Discrimination based on birth is prohibited and article 10, paragraph 3, of the Covenant specifically states, for example, that special measures should be taken on behalf of children and young persons “without any discrimination for reasons of parentage”. Distinctions must therefore not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons. The prohibited ground of birth also includes descent, especially on the basis of caste and analogous systems of inherited status.15 States parties should take steps, for instance, to prevent, prohibit and eliminate discriminatory practices directed against members of descent-based communities and act against the dissemination of ideas of superiority and inferiority on the basis of descent.
Other status
The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of “other status” is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. The Committee’s general comments and concluding observations have recognized various other grounds and these are described in more detail below.
Disability; For a definition, the Convention on the Rights of Persons with Disabilities (CRPD), art. 1 provides: “Persons with disabilities include those who have longterm physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” In its general comment No. 5, the Committee defined discrimination against persons with disabilities17 as “any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights”. The State should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace,20 as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.
Age; Age is a prohibited ground of discrimination in several contexts. The Committee has highlighted the need to address discrimination against unemployed older persons living in poverty with unequal access to universal old-age pensions due to their place of residence. In relation to young persons, unequal access by adolescents to sexual and reproductive health information and services amounts to discrimination. Also the inaccessibility ofyoung persons to land ownership likewise amounts to discrimination.
Marital and family status; Marital and family status may differ between individuals because, inter alia, they are married or unmarried, married under a particular legal regime, in a de facto relationship or one not recognized by law, divorced or widowed, live in an extended family or kinship group or have differing kinds of responsibility for children and dependants or a particular number of children. Differential treatment in access to social security benefits on the basis of whether an individual is married must be justified on reasonable and objective criteria. In certain cases, discrimination can also occur when an individual is unable to exercise a right protected by the Covenant because of his or her family status or can only do so with spousal consent or a relative’s concurrence or guarantee.
Health status; Health status refers to a person’s physical or mental health. States parties should ensure that a person’s actual or perceived health status is not a barrier to realizing the rights under the Covenant. The protection of public health is often cited by States as a basis for restricting human rights in the context of a person’s health status. However, many such restrictions are discriminatory, for example, when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum.27 States parties should also adopt measures to address widespread stigmatization of persons on the basis of their health status, such as mental illness, diseases such as leprosy and women who have suffered obstetric fistula, which often undermines the ability of individuals to enjoy fully their Covenant rights.
Place of residence; The exercise of Covenant rights should not be conditional on, or determined by, a person’s current or former place of residence; e.g. whether an individual lives or is registered in an urban or a rural area, in a formal or an informal settlement, is internally displaced or leads a nomadic lifestyle. Disparities between localities and regions should be eliminated in practice by ensuring, for example, that there is even distribution in the availability and quality of primary, secondary and palliative health-care facilities.
Economic and social situation; Individuals and groups of individuals must not be arbitrarily treated on account of belonging to a certain economic or social group or strata within society. A person’s social and economic situation when living in poverty or being homeless may result in pervasive discrimination, stigmatization and negative stereotyping which can lead to the refusal of, or unequal access to, the same quality of education and health care as others, as well as the denial of or unequal access to public places.
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