Statement by the Independent Expert on the issue of human rights obligations related to safe drinking water and sanitation, Ms Catarina de Albuquerque at the 15th session of the Human Rights Council

15 September 2010

Excellencies, distinguished delegates, ladies and gentlemen, I am pleased to be here today to present the activities undertaken in accordance with my mandate, including reports I have submitted to this Council.

GA’s recognition of water and sanitation as a human right

On 28 July 2010, the General Assembly recognized that water and sanitation are a human right . As I have said in the past, the right to water and sanitation is derived from the right to an adequate standard of living and indispensable for the realisation of other human rights. This resolution was a breakthrough and demonstrates the political will of the international community to address the fact that almost a billion people still do not have access to an improved water source, that between 2 and 3 billion people might not have access to safe drinking water and 2.6 billion do not have access to improved sanitation. The Human Rights Council is well placed to build on this important development and I look forward to continuing to work with, inter alia, all States, UN Agencies and civil society towards this aim. 

Excellencies,

In the past year, I have undertaken activities on all aspects of my mandate. I want to take this opportunity to thank the many people, but also institutions that have supported me over the last 12 months – the most crucial support came obviously from OHCHR. I also want to express my special thanks to the two main co-sponsors of the resolution that created my mandate for their constant support.

I have continued my work to clarify the content of human rights obligations related to access to safe drinking water and sanitation and I have begun collecting good practices. The main report before you and its first addendum address these issues. I have also continued to undertake country missions and today I will report on my mission to Egypt and on my joint mission to Bangladesh with the Independent Expert on extreme poverty, as well as make some brief observations on my mission to Slovenia. In addition, I conducted an official mission to Japan in July, and I will report on that visit next year. I wish to thank all Governments which have accepted to receive me in my capacity as Independent Expert and I appreciate the fruitful dialogue which has been established with these countries. Finally, I have continued to work on the Millennium Development Goals, which are the topic of my report to the General Assembly, to be presented next month in New York.

Non State service providers and the right to water and sanitation

My thematic report to the Council this year focuses on the human rights obligations and responsibilities which apply in cases where non-State service providers are involved in water and sanitation service delivery. This issue was identified in the 2007 report of the High Commissioner as requiring further study and is a topic that raises many misunderstandings.

I held three consultations in preparing this report - two expert consultations and one public consultation on States’ obligations and on non-State service providers responsibilities. I also received over 60 written contributions to inform my work on this topic, demonstrating considerable interest from a wide variety of stakeholders. The work of the Special Representative of the Secretary General, Mr. John Ruggie, constituted a fundamental framework which I applied to the water and sanitation sectors in order to better delineate the content ofStates’ obligations and private sector responsibilities related to human rights.

The report notes that three types of service provision may be distinguished: (1) direct management by the State, (2) delegated service provision, which involves non-State actors, and (3) informal provision, without any formal delegation by the State - which is de facto participation by non-State service providers. This report examines the human rights obligations and responsibilities which apply in the latter two cases. While non-State actors include actors from the private sector, many others also participate in this type of service delivery, such as NGOs and State owned companies. Furthermore, the private sector is not solely comprised of large transnational companies, but also includes medium and small scale service providers, as well as informal water vendors, with varying capacities and influence. The role of small scale service provision should not be underestimated - with approximately 25 percent of the population in Latin America and 50 percent of the population in Africa obtaining their water from small-scale, often informal, service providers.

While non-State service providers may positively contribute to the realization of the right to water and sanitation, there have been situations where human rights have been disregarded. This has lead to a false perception that private sector involvement in water service delivery is per se inconsistent with human rights. Yet, human rights do not favour a particular model of service provision and the decision to delegate lies with the State. Human rights are neutral. But this does not mean that the human rights framework is irrelevant – on the contrary. The delegation of water and sanitation service delivery does not exempt the State from its human rights obligations. Traditionally, human rights are concerned with the relationship between the State and the individual, imposing obligations on States and endowing individuals with rights. When a third party becomes involved in the realization of human rights, that relationship becomes even more complex. The types of measures required by a State shift to a greater emphasis on creating an enabling environment and regulating and monitoring these third parties -- with the aim of ensuring that the right to water and sanitation is realised for all.  At the same time, once involved, non-State actors also acquire responsibilities in the realization of this right.

The report identifies a number of challenges encountered in service provision. Many of these challenges are not unique to non-State service provision. Yet, the report focuses on non-State service provision, since the human rights analysis changes when non-State actors are involved. The ten main challenges can be summarized as

1. Guaranteeing transparent and democratic decision-making
2. Addressing power asymmetries in the bidding and negotiation process
3. Reaching the poorest and most marginalized
4. Ensuring affordable services
5. Avoiding disconnections in cases of inability to pay
6. Ensuring the quality of services
7. Ensuring regulatory capacity and enforcement
8. Ensuring monitoring and follow-up capacity
9. Establishing effective complaint mechanisms
10. Addressing corruption

The State is obliged to progressively realize the right to water and sanitation. In the context of non-State service provision, this requires ensuring meaningful participation and access to information in the decision to delegate services to non-State actors, as well as throughout the duration of the delegation. States are encouraged to build human rights impact assessments into processes concerning delegation of water and sanitation service provision to non-State actors. The State must eliminate de jure and de facto discrimination in access to water and sanitation, including in extending access to unserved and under-served areas. It also must ensure that non-State service providers do not engage in discriminatory practices. The State must put in place a regulatory framework to ensure compliance with human rights standards, as well as complementary social policies, for instance to ensure the affordability of services, where needed. Finally, accountability mechanisms to address and remedy violations of the right to water and sanitation are crucial.

Non-State service providers have specific human rights responsibilities and they must exercise due diligence to become aware of and address potential or actual negative impacts on human rights caused by their activities. Besides complying with national laws and regulations, non-State service providers must take proactive steps to ensure that they do not violate international human rights standards. In this regard, I also encourage these service providers to undertake human rights impact assessments as part of their due diligence. Service providers should also take measures to ensure water quality, regularity of supply, non-discrimination in operations, and fair procedures for disconnections in situations of non-payment, and particularly refraining from disconnections when people are unable to pay. Grievance mechanisms at the level of the service provider are also fundamental.

To sum up, while human rights are neutral with regard to involving non-State actors in service provision, including the private sector, more proactive efforts are needed by States to meet their human rights obligations, and by non-State service providers to fully ensure that they are not causing or contributing to human rights abuses. The report finishes with a series of recommendations which I hope will assist States and service providers in better complying with human rights standards relating to access to water and sanitation.

Progress regarding compilation of good practices

Now I turn to the second report before you, concerning good practices. As explained the last time I reported to this Council, in beginning my work on good practices, I first decided to identify criteria which would help to determine whether a practice is “good” from a human rights perspective. In October 2009, I held a consultation where various criteria were discussed. In building on those discussions, I have identified ten criteria that I consider crucial from a human rights perspective -- namely, availability, quality/safety, acceptability, accessibility, affordability, non-discrimination, participation, accountability, impact, and sustainability. Using this framework, I circulated a questionnaire to all States, as well as civil society, water and sanitation service providers, and other interested stakeholders, requesting submissions of good practices which meet these criteria. I have also been organizing consultations with relevant stakeholder groups, where I have discussed with hundreds of participants - the most recent of which was held earlier this week with civil society organizations. I have already received many contributions and I am confident that sharing these good practices will positively contribute to better implementation of the right to water and sanitation around the world.

Excellencies,
I would now like to briefly mention several country missions and thank all Governments for the excellent cooperation throughout the mission as well as in the preparation and follow up.

Mission to Egypt  

From 21 to 28 June 2009, I visited Egypt on an official country mission. Egypt has invested significant amounts of money in improving access to water and sanitation, with the positive outcome that the large majority of the population now has access to water. There are plans to continue these investments, in particular with regard to sanitation in rural areas. I was especially impressed by the vision and political will demonstrated by Egypt in working towards universal access to safe drinking water and sanitation - a fundamental aspect of guaranteeing human rights.

Despite the progress that Egypt has made, the country still faces important challenges with regard to full implementation of the right to water and sanitation. I received numerous complaints about water quality in Egypt. This problem is linked also to lack of continuous service, which leads people to install boosters to augment their supply when the normal supply is weak. The result is pollutants being brought into the water supply, posing risks to human health. Poor sanitation, pollution and other factors also have a detrimental impact on water quality and must be urgently addressed. The Prime Minister has declared improving water quality as the next policy priority in the area of water, and I encourage the Government to translate this political commitment into concrete actions to address this situation.

The circumstances in slums where access to water and sanitation lags behind is a serious concern for me. In these areas, many people are not connected to the water and sewerage networks, because they lack legal tenure over the land which they live on. They obtain their water from tankers and water points, paying considerably more than the official rates charged by the service provider. This follows a worldwide trend by which the poorest people pay the most for access to water and sanitation. More must be done in Egypt to find a sustainable solution for protecting the right of slum dwellers to an adequate standard of living, including their right to water and sanitation. In terms of affordability, revolving funds – to enable people to purchase a household water connection, while paying back in instalments - have worked well in rural areas of Egypt and could be similarly utilized in poor urban areas.

I am concerned about lack of transparency and access to information with regard to water and sanitation. Access to information is at the core of guaranteeing human rights, and I strongly urge the Egyptian Government to do more to ensure that people have free and easy access to information, that they are aware of where to file complaints about water and sanitation, and that such complaints are addressed in a satisfactory manner.

Mission to Bangladesh

From 3 to 10 December 2009, I undertook a joint mission to Bangladesh with the Independent Expert on extreme poverty. I will say a few words about my findings concerning the right to water and sanitation in Bangladesh, and Ms.Sepúlveda will speak about issues falling under her mandate. Importantly, the Government of Bangladesh has recognized the critical connection between poverty reduction, human rights and access to sanitation and safe water. Lack of access to safe water and sanitation is most acute for those living in extreme poverty and their opportunities to escape poverty will always be limited so long as they have no access to sanitation and water. We encourage the Government of Bangladesh to continue to approach its obligations related to poverty, water and sanitation in an integrated and holistic fashion, in order to achieve sustainable progress in these areas.

Specifically concerning water and sanitation, I welcome the fact that the Government of Bangladesh has recognized the right to water and the right to sanitation, and that it has set itself ambitious goals for achieving universal access. These political commitments have been bolstered by considerable attention, including investments, to the water and sanitation sectors.

Bangladesh’s progress with regard to sanitation, with its pioneering Community Led Total Sanitation approach, is a model for other countries. These efforts have resulted in a decrease in open defecation from 33 percent of the population in 1990, to 7 percent in 2008. The move from open defecation to fixed place defecation is a critical first step to ensuring the right to sanitation. There is however a need for continual monitoring to ensure that sanitation is actually hygienic, that people continue to use latrines, and that latrines are properly maintained. I am deeply concerned by the overall lack of wastewater treatment in Bangladesh which threatens water quality and the environment.

Water quality continues to be a challenge in Bangladesh. The discovery of arsenic in the groundwater in the 1990s was a set-back from which the country has still not recovered. The Government has numerous projects in place to address arsenic in the drinking water, but these need to be expanded, and attention must be paid to reaching the most vulnerable populations, including people living in poverty and people with disabilities. Furthermore, water quality is threatened by pollution – including from the lack of wastewater treatment -, as well as by climate change resulting in increased salinity of groundwater. I am concerned that Bangladesh does not have a comprehensive system for testing water quality. Although there are important initiatives to ensure testing for arsenic, more thorough testing is needed to ensure that water is safe to drink. 

The situation of access to water and sanitation in urban slums in Bangladesh, particularly in Dhaka, is of special concern. The lack of access is integrally related to the lack of secure tenure. Living under the constant threat of eviction, people in slums explained that they will not invest in water and sanitation hardware, since they could lose it at any time. Furthermore, even if they try to get connected, they can be refused because of their “illegal” status. While there are positive initiatives by NGOs acting as intermediaries to address this reality, the State must take concrete action to ensure people living in slums enjoy their right to water and sanitation. I am also particularly concerned about discrimination against sweepers, who are predominantly Dalits. Their job is to clean the sewers, septic tanks, and latrines. They reportedly have no protective gear and are subjected to considerable health risks. Furthermore, they live in slum communities which have no access to water and sanitation. I urge the Government of Bangladesh to eliminate all forms of discrimination, and to ensure the right to water and sanitation for all people.

Mission to Slovenia

I went to Slovenia from 24-28 May 2010. I have submitted a preliminary note on this mission, and I will present a full mission report the next time I am before this Council. In my preliminary note, I observe that Slovenia has ensured the right to water and sanitation for the vast majority of its population. However, I am concerned about rising poverty rates which may lead to unaffordable water and sanitation services for people living in extreme poverty. I encourage the Government to closely monitor poverty rates in the country, and to ensure a robust social welfare programme is in place to assist people living in poverty. I am also extremely concerned about the situation of some Roma communities. While certain municipalities have made important progress to integrate Roma communities, including by assuring access to water and sanitation, other municipalities have failed to take such measures. I visited communities where the people have no choice but to drink from polluted streams, or walk for two hours to obtain safe water. The lack of water and sanitation has serious hygiene and health implications for people living in these communities, which impacts children’s access to education and adults’ access to work. I strongly urge the Government of Slovenia to ensure that all municipalities in the country provide all residents with access to safe water and sanitation.  

Excellencies,
The formal recognition of the right to water and sanitation by the General Assembly this summer was an overdue and critical step for progress on this issue. However, on its own, it does not suffice. Above all, guaranteeing the right to water and sanitation is about implementation, about ensuring access for those who still do not enjoy safe water and sanitation. I look forward to continuing the work under my mandate to clarify States’ obligations and responsibilities of other actors, as well as collecting good practices, and thank this Council for its support.