African Commission Adopts Guidelines on the Human Right to Water
In the midst of a global pandemic that has highlighted the need to make water accessible for all, the African Commission on Human and Peoples’ Rights (ACHPR) has published new Guidelines on the Right to Water in Africa. [ACHPR Press Release] While the African Charter on Human and Peoples’ Rights (African Charter) does not expressly include the right to water, the guidance is grounded in the regional treaties’ protection of economic, social, and cultural development; health; access to natural resources; the environment; and, food. The Guidelines aim to inform civil society on States’ obligations with respect to the right to water, and guide States in meeting their obligations to respect, protect, and guarantee the right to water. [ACHPR Press Release] Drawing on its jurisprudence and prior resolutions, as well as reports from United Nations special rapporteurs and General Comment No. 15 of the UN Committee on Economic, Social and Cultural Rights, the ACHPR Guidelines provide a comprehensive, human-rights based approach to ensure access to safe, affordable, and sufficient water. See ACHPR, Guidelines on the Right to Water in Africa (2019). The Guidelines were adopted during the ACHPR’s 26th Extraordinary Session in July 2019, and made public during its 28th Extraordinary Session, which took place during the last week of June 2020.
Other human rights systems have also grappled with the human right to water and its relevant legal framework – even where the right is not expressly recognized in the main human rights treaties. For example, the European Court of Human Rights has recognized that individuals have a right to access clean water under Article 8 (right to respect for private and family life and one’s home) of the European Convention on Human Rights. See ECtHR, Factsheet – Environment and the Convention on Human Rights (March 2020). Similarly, the Inter-American Commission on Human Rights and Inter-American Court of Human Rights have found that the right to water can be derived from the rights to life, property, and health. See IACHR, Annual Report, Chapter IV.A, Access to Water in the Americas an Introduction to the Human Right to Water in the Inter-American System, 17 March 2016, paras. 26-90. Separately, United Nations bodies, including the Special Rapporteur on the human rights to safe drinking water and sanitation, have produced a number of relevant reports and other materials, such as a factsheet on the right to water under international human rights law.
Guidelines – Overview
The ACHPR’s Resolution 300, of 2015, mandated its Working Group on Economic, Social and Cultural Rights in Africa to develop the guidelines. The Working Group drew on articles 16 (right to health), 21 (free disposal of wealth and natural resources), 22 (economic, social and cultural development), and 24 (satisfactory environment) of the African Charter and on Article 15 (right to food security) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (Maputo Protocol). The guidance builds on prior ACHPR documents, including the ACHPR Guidelines and Principles on Economic, Social and Cultural Rights (Nairobi Guidelines) and 2010 Reporting Guidelines for Economic, Social and Cultural Rights in Africa (Tunis Reporting Guidelines), as well as relevant United Nations reports and interpretations.
The Guidelines cover States’ obligations to respect, protect, promote and fulfill the right to water, as well as to mobilize resources for the realization of the right to water. See ACHPR, Guidelines on the Right to Water in Africa (2019), paras. 1-4. Specifically, the Guidelines clarify that States have an obligation to “protect water resources, including springs, streams and lakes that are of cultural significance to the local and traditional communities or to the country at large….” See id. at para. 1.5. More generally, the Guidelines state that the principles of non-discrimination, equal access, and non-retrogression must be complied with in the context of the right to water. See id. at paras. 5-6. The principle of non-retrogression prohibits States from implementing measures that would lead to “backward steps in the enjoyment of the right to water.” See id. at para. 6.1. Beyond prohibiting discrimination, the principle of non-discrimination and equal access also requires paying “particular attention” to gender equality and the protection of the rights of women and girls in the water sector. See id. at para. 5.3.
Rights-based Approach & Access to Water
The Guidelines focus on a rights-based approach to water management; access to sufficient (meets individuals’ needs), safe (free from hazardous substances), acceptable, physically accessible, and affordable water for personal and domestic use; and, the on positive measures States must adopt to address the needs of marginalized groups and groups with special water needs. See id. at paras. 7-11, 12-16, 17-27.
A rights-based approach entails implementing mechanisms that allow for the open, transparent, and effective participation of all stakeholders, including vulnerable and marginalized groups and civil society, in “all stages of planning, decision-making, implementation, monitoring and evaluation of water resources management and water, sanitation and hygiene policies.” See id. at paras. 8.1-8.4. This also requires free, prior, and informed consent of communities in the context of any developmental activity that may affect their use or equitable access to water resources. See id. at paras. 8.8-8.10. Moreover, States must ensure access to accurate, reliable, and comprehensive information regarding the right to water and how to exercise this right. See id. at paras. 9.1-9.6.
While States are responsible for the realization of the right to water, the Guidelines outline accountability measures to remedy violations of the right to water by private actors, including by preventing corruption, guaranteeing that companies can be held accountable for extraterritorial activities, and ensuring water management is conducted in a sustainable manner. See id. at paras. 10.1-10.7.
Drawing on the Nairobi Guidelines, the new Guidelines state that the right to water “entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water.” See id. at para. 12. In particular, the Guidelines elaborate on pricing policies and the issue of water disconnection in the context of affordability, as well as disease prevention and monitoring in the context of access to “safe water.” See id. at paras. 15-16.
Vulnerable & Marginalized Groups
States have an obligation to adopt positive measures to guarantee access to water to vulnerable and marginalized groups with special needs. See id. at paras. 17.1-17.4. Water supply policies must be adapted to meet the special needs of these groups. See id. at para. 17.4. These include individuals who are homeless or live in informal settlements, individuals in rural areas and deprived urban areas, imprisoned or detained individuals, children, women, the elderly, and people with disabilities. See id. at paras. 17-24. Refugees, migrants, internally displaced persons, and asylum-seekers also have the right to water within their jurisdiction, regardless of their nationality or lack of migratory status. See id. at paras. 25-26.
Additionally, States must protect and respect the right to water of Indigenous peoples whose access to natural resources is “intrinsically related to their right to life, food, self-determination and the right to exist as a people.” See id. at para. 27.2. In this respect, States have an obligation to consult with Indigenous peoples to “to support them in protecting, developing and adapting their traditional water management systems for their ancestral lands.” See id. at 27.1.
Sustainable Water Management & Private Actors
The Guidelines also provide direction for sustainable water management, taking into account climate change, and address the role of private actors in providing water supply services as well as the role of the State in their regulation. See id. at paras. 28-31, 32-33. Sustainability, according to the Guidelines, is “intrinsically linked to the principle of equitable use of water resources” and goes beyond functionality. See id. at para. 28.1. Sustainable water management strategies should be established in States’ legal frameworks and should include human rights impact assessments. See id. at paras. 28-29. Moreover, the Guidelines specifically call on States to implement measures and policies that address the role of climate change and its impact on the right to water. See id. at para. 31.
States must also regulate private actors that engage in water management, particularly when the State is delegating water services to private entities. See id. at paras. 32-33. The Guidelines outline several requirements and procedures that States must meet and follow when delegating water services, including the requirement to ensure that all contracts with private entities meet human rights law standards. See id. at paras. 32.1.-32.8. Nevertheless, the Guidelines clarify that States “remain accountable in case of harm caused by the activities of a private water operator.” See id. at paras. 32.8, 33.
Finally, the Guidelines outline implementation methods to ensure that the objectives detailed in the Guidelines are met. See id. at para. 34. These include the dissemination of the Guidelines, trainings and capacity building, and periodic reporting to the ACHPR, as well as international and regional cooperation between States. See id. at paras. 34-39.
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