Drafting and Determining the GC

As stated formerly, the purpose o f the GC 15 is to clarify the normative content o f the right as well as setting standards and guidelines for state parties to the Covenant to realise their obligations. The first step was to establish what the scope o f the right to water entailed. As Gleick points out, ‘A right to water cannot imply a right to an

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unlimited amount o f water’, as this is unsustainable both practically and

environmentally. The normative content o f the right to water as set out in GC 15 initially defines the entitlements given under the right to water:

The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount o f safe water is necessary to prevent death from dehydration, to reduce the risk o f water-related disease and to provide for consumption,

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cooking, personal and domestic hygienic requirements.

These entitlements contained in GC 15, paragraph 2 determine the key values o f safety, accessibility, sufficiency and affordability. In addition the provision prioritises water uses. This may appear straightforward; however, these key principles need to be examined in order to elucidate what they mean practically for the normative content o f the right. Within the detailed provisions o f paragraph 12, the three

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principles o f availability, quality and accessibility contain the substantive standards regarding the content of the right to water. They set out the minimum essential level of water necessary for meeting the core obligations, i.e. water for basic needs, as well

180 G leick, 1999, p.494. 181 GC 15, paragraph 2.

182 R egarding GC 15, the original draft listed headings: ‘sufficient, safe, affordable and a c c e ssib le ’ w hich differed to those in other G C ’s. T o ensure continuity and clarity o f standards these w ere adapted and resulted in the 3 principles o f availability, quality and accessib ility, in line w ith th ose listed in GC 14.

as setting standards for safety and cleanliness o f water and ensuring equal access, both physical and economic.

Firstly, in regard to availability, we need to define what constitutes sufficient water. In

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the original draft GC 15, paragraph 8 detailed the minimum standard o f water as a defined numerical level that was acceptable.184 However, it was pointed out that this numerical level could and would change over time. Therefore, it was agreed that the GC 15 should state sufficiency in terms o f the current applicable WHO guidelines so as to ensure relevance over time:

While the adequacy o f water required for the right to water may vary according to different conditions, the following factors apply in all circumstances [...] The quantity o f water available for each person should correspond to World Health Organization (WHO) guidelines.185

However, sufficient water alone is not enough to ensure a human right to water. Safe water is also required and it is true that many people, who do receive this basic water requirement or more, are not receiving clean, safe water but water which is contaminated.186 Hence the GC 15, paragraph 12 (b) provides that:

183 U N C om m ittee on E conom ic, Social and Cultural R ights, D R A F T GC N o . 15 (Future 2 9 th session , 11-29 N o v 2 0 0 2 , A genda Item 3). The Right to Water (Arts 11 and 12 o f the C ovenant). Future E/C. 12/2 0 0 2 /1 1 . 2 9 th July 2 0 0 2 .

184 This being ’50 litres or the m inim um essential level, approxim ately 20 litres’ per person. G leick argues for a ‘B asic Water R equirem ent’, w hich covers four basic needs; 5 litres for drinking water, 10 litres for cook in g and food hygiene, 15 for bathing and w ashing and 2 0 litres for sanitation needs. This am ounts to a total o f 50 litres per person, per day. He m aintains that this lim it is irrespective o f clim ate, level o f developm ent and tech n ology and culture. See G leick. P, ‘B asic water requirem ents for human activities: m eeting basic n eed s’, Water International. V ol 2 1 , 1996, pp 83 -9 2 at p .88. A lso G leick, 1999, p.496 and Scanlon et al, 2 0 0 3 , pp.24-25.

185 GC 15, paragraph 12 (a).O riginal footnote om itted.

186 An exam ple o f this is evident in case studies from India, w here villagers receive su fficien t am ounts o f water but the water itse lf is contam inated with arsenic. This has led to arsenic p o iso n in g am ongst 2 0 0 ,0 0 0 o f the population in B engal and 70 m illion in B angladesh. S ee Shiva. V , W ater Wars. London: Pluto Press, 2 0 0 2 , p. 114. See also, Nath, Oral Subm ission to the D ay o f General D iscu ssio n on the General C om m ent on the Right to Water, CESC R 2 9 th Session , N ovem b er 2 0 0 2 , G eneva; Smith. A,

The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that

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constitute a threat to a person’s health. Furthermore, water should be o f an acceptable colour, odour and taste for each personal or domestic use.

Finally, the third principle that is a constituent element o f the normative content is accessibility. As the GC 15 states, accessibility has four overlapping dimensions: (i) Physical accessibility, (ii) Economic accessibility, (iii) Non-discrimination and (iv) Information accessibility. The general paragraph 12 (c) states, ‘Water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction o f the State party.’188

In terms o f physical accessibility the GC focuses upon physical safety and security

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and this is important for those people living within conflict zones , such as the Occupied Territories in Israel/Palestine. Regarding economic accessibility, water, and water facilities and services, must be affordable for all.190 Information accessibility covers the right to receive and distribute information concerning water issues.191 Scanlon et al develop this dimension further, in a discussion that examines the procedural rights relating to the human right to water. Procedural rights are important because they ‘enable the enforcement of substantive rights.’192 The core procedural

Lingas. E and Rahman. M, ‘C ontam ination o f D rinking-W ater by A rsenic in B angladesh: A Public Health E m ergen cy’, B ulletin o f the W HO. V ol. 78, N o .9 , 2 0 0 0 , pp. 1 0 9 3-1103 For a general reference regarding arsenic p oison in g see www .who.int.vvater sanitation health/A rsenic/arsenic.htm

187 Original footnote om itted.

188 GC 15, paragraph 12 (c). It is also im perative to note here, the ‘special top ics o f broad application’, paragraphs 13 and 14, w hich impart the obligations o f states regarding non-discrim ination and vulnerable groups concerning the right to water. See section on p .56.

189 GC 15, paragraph 1 2 ( c ) (i). 190 GC 15, paragraph 12 (c) (ii). ,91 GC 15, paragraph 12 (c) (iv). 192 Scanlon et al, 2 0 0 3 , p.25.

rights that accompany the right to water are, according to Scanlon et al: The right o f individuals to information concerning the states activities regarding water,193 the right o f individuals to participate in decision-making concerning water,194 the right o f individuals to recourse and the right to fair and just administrative action.195 It is worth highlighting here that these rights are all deemed civil and political rights and are necessary for the realisation of the right to water.

Finally in relation to the normative content, the GC highlights both the positive and negative aspects o f the right to water:

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 o f water supplies. By contrast, the entitlements include the right to a system o f water supply and management that provides equality o f opportunity for people to enjoy the right to water.196

This framework of positive and negative aspects is also reflected within the section concerning obligations.197

Regarding ‘Special Topics of Broad Application’, non-discrimination is exceptional as it is applicable to aspects o f accessibility as well as the other key elements o f the

193 ICCPR, A rticle 19.

194 ICCPR, Article 19, 21 and 25. 195 ICCPR, Article 14.

196 GC 15, paragraph 10, my em phasis added.

197 GC 15, paras. 17-38. S ee Chapter 2 for a detailed d iscussion o f obligations as provided for under GC 15.

right to water. Paragraph 12(c) (iii) states: ‘Water and water facilities and services must be accessible to all, including the most vulnerable or marginalised sections o f the population, in law and in fact, without discrimination on any o f the prohibited grounds.’

Paragraph 12 and paragraphs 13 and 14 contain general clauses concerning non­ discrimination and relate closely to the provisions regarding vulnerable groups. These provisions detail measures to ensure equal access to water for those groups and individuals at risk o f discrimination. Paragraph 13 proscribes any discrimination in line with the provisions o f the ICESCR, which ‘has the intention or effect o f nullifying or impairing the equal enjoyment or exercise o f the right to water.’

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Paragraph 12 o f General Comment 3 is referred to: ‘even in times o f severe resource constraints, the vulnerable members o f society must be protected by the adoption o f relatively low-cost targeted programmes.’ This protection is reiterated within paragraph 15 which determines that state parties have a ‘special obligation’ to provide water to those who do not have the sufficient means.

The GC also recognises that access to water resources may be limited by covert discrimination:

States parties should take steps to remove de facto discrimination on prohibited grounds, where individuals and groups are deprived o f the means or entitlements necessary for achieving the right to water. States parties should ensure that the allocation o f water resources, and investments in water,

198 U N C ESC R, General C om m ent N o .3. 14/12/90. (Fifth session , 1990) The nature o f States parties obligations (Art. 2. para. 1 o f the C ovenant), paragraph 12.

facilitate access to water for all members o f 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.199

An example o f this inappropriate resource allocation can be seen in the OPTs where Palestinian villages although connected to the mains, have limited water supply, whereas Israeli settlements in the same area have full mains connections from the Israeli water service provider Mekorot and increased supply o f water during the

summer200 (which is used inter alia for luxury uses such as swimming pools and lawn

sprinklers). Further illustration of discriminatory investment in water services is evident in the case o f Cochabamba, Bolivia, where the state owned water service was sold to a private company in response to conditions imposed by the World Bank in

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order to guarantee a loan to refinance water services. This resulted in a rise in cost to the population that proved impossible for the poor o f the city to afford.202

Significantly, the human rights NGO World Organisation for the Prevention o f Torture,203 has argued that the removal of de facto discrimination, as provided for in paragraph 14, ‘along with the necessity to give special assistance to individuals and

199 GC 15, paragraph 14, m y em phasis.

2°° B ’T selem , Thirsty for a Solution - the Water Crisis in the O ccupied Territories and Its R esolu tion in

the Final Status A greem ent. Jerusalem: B ’T selem , July 2 0 0 0 , p.4 and p p .4 3 -4 4 , available from

Publications, Water Crisis, w w w .b tselem .0n2; . See also Chapter 4.

201 Barlow . M and Clarke. T, Blue G old - The Battle A gainst Corporate T heft o f the W orld ’s Water. London: Earthscan, 2 0 0 2 , p. 154.

202 Barlow and Clarke, 2 0 0 2 , p. 155. 203 Hereafter referred to as OM CT.

groups traditionally facing difficulties in exercising the right to water implicitly recognises the concept o f affirmative action policies or special measures.’204

Moreover, OMCT argue that this may be problematic because the non-discrimination principle, as interpreted by international trade law, could put restraints upon a state’s ability to implement affirmative action policies, which are aimed at ensuring de facto

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equality o f the enjoyment o f the right to water. This is evident in the case outlined above regarding the World Bank and the city o f Cochabamba, Bolivia. Here, the city’s authorities were forbidden under conditions demanded by the World Bank to

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use any o f the refinance loans to subsidise the poor. This would seem to contradict the special protection measures as provided for in paragraph 16 regarding vulnerable groups, as well as the general non-discrimination provision.

Paragraph 16 notes the requirements of states regarding these specific vulnerable groups and the right to water.207 Brought in line with GC 14, the paragraph includes provision for women, children and indigenous peoples. Moreover GC 15 also includes

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explicit provision concerning refugees and internally displaced peoples, as a

vulnerable group, which GC 14 does not. This illustrates a deficiency within GC 14, as refugees and IDPs are only provided for specifically within the clause relating to international obligations, paragraph 40, which states an obligation to provide disaster relief in times o f emergency. It is evident that this gap in provision has been rectified

204 W orld Organisation for the Prevention o f Torture (O M C T), ‘The R ealisation o f the R ight to Water and the liberalisation o f Trade in Services: C hallenges. Im plications for a General C om m ent and R ecom m en d ation s’. Subm ission to the ICESCR D ay o f General D iscu ssio n on the Draft General C om m ent on the Right to Water, N ovem ber 2 2 nd 2 0 0 2 , p .5.

205 W orld Organisation for the Prevention o f Torture (O M C T ), 2 0 0 2 , p.6. 206 Barlow and Clarke, 2 0 0 2 , p. 155.

207 See overleaf.

within GC 15, perhaps due to the nature o f ‘water’ being seen as an immediate and fundamental need for the survival o f refugees.

These special protection provisions are especially necessary in relation to the right to water, as it is the poor and children that are mostly burdened with water related disease. Furthermore, gender issues are raised in relation to women and girls and water related labour, including resulting educational problems and the existence o f cultural values and practices related to water that discriminate against women.209

In particular, several vulnerable groups are given special protection under specific provisions. State parties must take steps to ensure that these groups are protected. Firstly, the rural and urban poor: It is evident that the poor have the least access to adequate water and sanitation, little finance to pay for water, poor housing and as such an increased risk o f poor hygiene leading to poor health. Under paragraph 16 (c) states must ensure that the poor both in rural and urban settlements have access to properly maintained water facilities. This provision includes informal settlements and homeless people. This provision is further extended under paragraph 16(e) to cover ‘nomadic and traveller communities when stationary at both traditional and designated halting sites’. In addition, ‘Access to traditional water sources in rural areas should be protected from unlawful encroachment and pollution.’ It also notes that ‘No household should be denied the right to water on the grounds o f their housing or land status.’ An example of this can be seen in Israel, where the ‘illegal status’ of dwellings is used as a reason for denying water to traditional Arab homes in Arab

209 Bartram. J, Representative o f W HO, Oral Subm ission to the D ay o f General D iscu ssio n on the G eneral C om m ent on the R ight to Water, C ESC R 2 9 th Session , N ovem b er 2 0 0 2 , G eneva.

Bedouin villages not recognised by the Israeli Authorities.210 As such they are denied access and connection to the mains water supply.211

In relation to women, paragraph 16(a) asserts that women should not be excluded from decision-making processes concerning water resources. This point refers to a deeper problem concerning the central role women have in both agricultural production and domestic water use. In relationship to the decision-making process, the UN Food and Agriculture Organisation hold that, ‘women account for the majority o f the developing world’s farmers and as such need fair and equitable access

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to water, land and water management systems’. Moreover, paragraph 16(a) notes

‘the disproportionate burden women bear in the collection o f water should be alleviated.’ The issue o f water related labour and women is noted by Nath, ‘Women

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and female children spend 30-40% o f their calorie intake on collecting water.’ This also effects the education o f female children, as globally, 50 million primary school aged girls do not attend school as a result o f collecting water and firewood or through inadequate sanitation and water provision in educational establishments.214

210 The R egional C ouncil for the Palestinian B edouin o f the U n recogn ised V illa g es, N e g e v , Israel, ‘The B edouin U nrecognised v illages in the N e g e v ’ available at w w w .arabhra.org and the A sso cia tio n o f Forty - The association for the recognition o f the Arab U n recognised V illa g es in Israel, H om e page general statem ent, available at h ttp ://w w w .assoc40.org Last accessed 2 4 th A pril 2 0 0 7 .

The R egional C ouncil for the Palestinian B edouin o f the U n recogn ised V illa g es, A pril 2 0 0 7 . A lso , Adalah - The Legal Centre for Arab M inority Rights in Israel, ‘The Right to Water: N o A c c e ss to C lean Water in the U nrecognised V illa g es o f the N aq ab ’ in Land and H ousing R ights - Palestinian