Intervention by the Special Rapporteur on the human right to safe drinking water and sanitation at the 27th session of the Human Rights Council

9 September 2014

Mr President, excellencies, distinguished delegates, ladies and gentlemen,

This is my sixth and last interactive dialogue at the Human Rights Council as Special Rapporteur on the human right to safe drinking water and sanitation.

I am pleased to present you four reports: my annual thematic report on common violations of the human rights to water and sanitation, two country mission reports on Brazil and Jordan, and an introduction to the Handbook for realizing the human rights to water and sanitation.

As you know, over the course of my mandate, I have focused many reports and projects on compiling good practices and providing guidance on how to implement the human rights to water and sanitation.

However, I think it is crucial to consider what amounts to human rights violations. In this regard, this report adds another perspective to my work. In the last six years I have also been confronted with a multitude of human rights violations – which are often not perceived as such neither by individuals nor by States themselves.

While the countries I have visited were extremely diverse, many challenges faced are remarkably similar from the world richest or biggest countries to countries under extreme water scarcity to small island countries. I have repeatedly witnessed patterns of marginalization and discrimination; a failure to take the necessary immediate steps to realize the rights to water and sanitation to the maximum of available resources; a failure to regulate and protect those rights where services were delegated to third parties; and instances of retrogressive measures and poor investment in operation and maintenance and lack of consideration for sustainability.

In many instances, violations of the human rights to water and sanitation are ongoing. With this report, I hope to increase awareness of those violations and to promote a greater commitment to identifying, preventing and remedying them.

22 years ago the Committee on Economic, Social and Cultural Rights released a statement arguing that we “tolerate all too often breaches of economic, social and cultural rights which, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action.”¹.

We have come a long way in the last two decades. Economic, social and cultural rights are receiving more attention, they are more widely understood as “real” human rights. There is greater commitment to realizing them and significant progress in identifying violations and remedying them, at the national as well as the international levels. The entry into force of the Optional Protocols to the Social Rights Covenant, the CRC and the Convention on the Rights of Persons with Disabilities are critical developments in international human rights law which dissipate any potential doubts on these rights’ justiciability.

However, there is still a long way to go before violations of economic, social and cultural rights provoke not only outrage, but also systematically give rise to adequate preventive and remedial action. With this report, I hope to contribute to a more comprehensive understanding of violations of economic, social and cultural rights and how to remedy them.

All components of human rights are justiciable, and any violation must be subject to effective remedies. While it is generally recognized that a failure to comply with any human rights obligation constitutes a violation, key components of the human rights to water and sanitation are still too often viewed primarily as aspirational policy goals.

In this report, I use a comprehensive typology of human rights violations. I examine violations of the obligations to respect, to protect, to fulfil, to refrain from discrimination and to ensure substantive equality, and to ensure active, free and meaningful participation, as well as extraterritorial obligations. Violations of human rights obligations come in very different forms.

Some violations are easier to identify than others. For instance, a deliberate act is easier to point to than a failure to take necessary measures. An unjustifiable disconnection is easier to identify as violation than a failure to connect people to services where a State would have the resources to do so. And, deliberate exclusion of certain individuals based on a prohibited ground of discrimination is easier to classify as violation than years and decades of neglect that led to the marginalization of entire communities.

However, while they might be more difficult to ascertain, we must not ignore the more complex human rights violations. Where States fail to progressively realize human rights commensurate with maximum available resources, where they fail to implement comprehensive plans and strategies to ensure full realization of rights in the long term, these failures are serious human rights violations. These are just as important to identify, prevent and remedy as more immediately obvious violations. In many instances, such violations go hand in hand with broader deprivations and are of a structural and systemic nature affecting a large number of people. In many cases they are linked to deeply entrenched discrimination and marginalization.

Violations related to inequalities experienced by certain groups, such as people living in poverty, informal settlements, or rural and remote communities, or homeless people, have remained largely unchallenged, despite their severity.

urthermore, violations of the right to sanitation in general have not received the attention they deserve. Victims of violations of the right to sanitation are among the most stigmatized and marginalized in society, and there remain taboos preventing an open discussion about the indignities linked to unhygienic conditions.

In looking at violations in a comprehensive manner, I hope to promote greater　awareness of these violations that are most likely to escape attention. Not identifying and addressing these human rights violations would mean that we are failing the people who are among the most disadvantaged in society.

The purpose of a more focused consideration of violations of the human rights to water and sanitation is to promote more concerted action to ensure access to justice, as well as to identify preventative measures. What I consider important is a remedial rather than punitive approach. While it is important in some cases to hold those responsible for violations accountable for their actions, the general focus should be on what needs to be done to remedy violations and on who is responsible for remedying violations, rather than on who is to blame.

Transformative remedies can move claimants further towards the full enjoyment of human rights. Without such remedies, there is a risk that access to justice will be limited to those people who are in a position to seek remedies for themselves and will preclude claims in the public interest. Beyond remedying individual violations, identifying patterns of violation will also help to prevent such violations and will require governments to address their structural causes.

Many judicial systems give preference to claims based on negative obligations over those based on positive obligations, claims to immediately enforceable remedies over longer-term transformative ones, and claims affecting individuals or small groups over claims that require systemic changes. We must not permit that victims of the most egregious human rights violations are denied the remedies to which they are entitled. Therefore the justice system might have to be transformed and I urge courts, human rights institutions, governments and advocates to redefine justice and the role of courts in relation to what human rights require and ensure access to effective remedies.

Let me now briefly outline the main findings of my country missions to Brazil and Jordan. I thank both Governments for the excellent cooperation and constructive dialogues during the visits as well as in follow up and preparation of the missions.

Brazil

In December I conducted a country visit to Brazil and concluded it with a sweet and sour feeling. Sweet, because Brazil achieved significant progress in poverty reduction and strengthening the legal and institutional structure for water and sanitation. Sour, because despite such progress, the numbers of people who continue to live without access to water and sanitation in the shadows of a rapidly developed society are still enormous. These are the people living in informal urban settlements and in rural areas, the poorest and those who belong to minorities. Moreover water services are still unaffordable to many and a federal affordability standard should be adopted.

I trust that the Government will continue progress in ensuring quality, availability, affordability, accessibility and acceptability of water and sanitation services, giving priority to the most marginalized. I encourage the Government find solutions for those groups of people who are caught in protection gaps.

Jordan

In March I visited Jordan - one of the three most water scarce countries in the world which is living a critical moment facing enormous challenges with providing water and sanitation services to a growing population as well as to the millions of refugees that Jordan generously hosts. The greater demand for water has also put enormous strain on sanitation facilities, which is a particularly acute public health concern in the Northern governorates. I was impressed by commitments made by the Government of Jordan for water and sanitation, and by significant progress in the connection of water and sanitation networks and in the collection, treatment and reuse of wastewater. Challenges, however, remain with the intermittency of water supply, with grave consequences for quality and availability and with a tariff system that puts an unjust burden on the poor and marginalized. In a water stressed country like Jordan, water and sanitation services can be made sustainable only if personal and domestic uses are clearly prioritized and water losses are urgently addressed. The current heavy subsidization of water, in particular for agriculture, could pose threats to sustainability.

The Government of Jordan has been tackling the water crisis as an emergency issue, although the measures taken to date have been neither sufficient nor sustainable. I call on the Government of Jordan to take a holistic approach to the situation by combining attention to emergency needs for water and sanitation with a long-term, comprehensive development strategy that will ensure the human rights to water and sanitation of everyone in Jordan.

Looking back at my term as a Special Rapporteur, if I can be proud of one thing it were the tireless dialogues with so many different stakeholders, even though sometimes we thought we were speaking different languages, for instance when I talked to water and sanitation engineers who were mentioning on pipes and sewerage systems as passionately as I was talking about people. In such dialogues, many persons from States, United Nations agencies, service providers, regulators, civil society organizations, said to me, “you convinced me. We understand that water and sanitation are human rights. But, tell us what it means for us and how to implement them “. Responding to such requests, and to overcome my sense of guilt that I did not have a full set of answers to give them, I have developed a handbook for realizing the human rights to water and sanitation as a culmination of my work on the mandate.

I am therefore pleased to be able to take this opportunity to introduce this handbook to you. The past six years have brought me into contact with so many well-informed, interesting and engaged people: mayors and ministers, engineers and economists, business managers and community organisers, human rights lawyers and government officials. I have shamelessly used these people, with all of their extensive experience, opinions and ideas, to develop strategies to realise the human rights to water and sanitation – and these ideas and strategies have been condensed into the nine booklets of practical guidance and checklists that I am presenting to you here today.

In this Handbook I have organised the guidance into five specific areas of activity that States are responsible for, and outlined specific steps that should be taken to in order to ensure realisation of the human rights to water and sanitation. These five areas of activity are:

• Legislative, regulatory and policy frameworks
• Financing, budgeting and budget-tracking
• Planning and service provision.
• Monitoring
• Access to justice

There is also a booklet that examines what the human rights principles of non-discrimination and equality, access to information, the right to participation, and sustainability and non-retrogression mean for the realisation of the human rights to water and sanitation.

All of these booklets are supported by checklists for States to examine their own progress in realising the human rights to water and sanitation.

The development of the Handbook has been achieved through a long and detailed process of consultations and debate, with all views and approaches carefully weighed up and measured against what I have experienced in the six years of my mandate as UN Special Rapporteur. I sincerely hope that you will find this Handbook instructive and useful, and that you will be able to use it in your work to strengthen the power of the human rights to water and sanitation.

To conclude, I would like to thank the countries that have substantively and financially supported my activities over the past years and without whom much of the work I did would not have been possible. I also want to thank a very special partner that has supported me a lot, especially in country missions: UNICEF. I would like to thank the Governments and their Delegates at the Human Rights Council, for a wonderful cooperation over the past years.

An obvious and particular word of thanks goes to the Office of the High Commissioner for Human Rights for making the impossible possible and, like we say in Portuguese, making omelets with almost no eggs available. If UN Member States take human rights and special procedures seriously, more resources – financial and human – are indispensable for the work to be undertaken efficiently and for OHCHR to ensure adequate support. I know, like the Beatles said, money can’t buy us love, but lack of money risks to slowly suffocate the system. I want to thank the many non-governmental organizations, regulators, service providers, engineers and individuals who have increasingly embraced and integrated the rights to water and sanitation in their work, and helped me to understand the technicalities of the sector, as well as its many challenges. To conclude I want to publicly state that I feel the luckiest and most privileged person in the world for the wonderful team I had, composed by a group of people unconditionally supporting my work! Very warm thanks to all of them for their energy, passion, competence and patience!!!!

1. A/CONF.157/PC/62/Add.5, para. 5.