Can the human right to water and sanitation help us address the sustainability crisis? (Part 1)

Published on: 13/03/2013

These are two lists of long words being used by two very different communities: 1) water and sanitation professionals, and 2) human rights lawyers. Why are we in the same room (a room with a view in the UNHCR's palace in Geneva) struggling to understand each other?

Everyone has a human right to water and sanitation. It's quite new having been established only in 2002 and then more widely known after UN General Assembly and Human Rights Council decisions in 2010 and 2011 which included appointing a special rapporteur. It's not always obvious to see how human right makes a difference though. As I can see, the right has provided encouragement to civil society groups to pressurise governments to do more on water and sanitation, national human rights commissions are empowered to address the issue, and you could get a letter (if you are a State) rapping your knuckles from the Committee on Economic, Social and Cultural Rights. In a few countries, courts are using emerging human rights law to promote access to safe water and sanitation. Soon it will be possible to directly make complaints to the Committee under the 'optional protocol' that countries can opt into. Overall, the efforts around the human right provide a mechanism to promote more transparency and accountability, something that the water and sanitation sector often lacks.

The reason we are all sitting in this room is sustainability or rather the lack of it. Sustainability is the hot topic in the water and sanitation sector at the moment. We have been already talking seriously about sustainable water resources management for a while and this remains a key issue. Recently we see more and more figures about a crisis in functionality of water systems. What to do about all those broken handpumps in Africa and Asia? How to avoid open-defecation free villages slipping back?

The Special Rapporteur on the Right to Safe Drinking Water and Sanitation, Catarina de Albuquerque, is concerned about these problems too. She is going to write a report on the topic of sustainability and non-retrogression in the realisation of the human rights to water and sanitation. It's a challenge in the north as well. Replacing old infrastructure in the USA is going to place a heavy burden on citizens that will need to pay more.

The human rights lawyers here are concerned about non-retrogression. Particularly, how to define it. Not taking backward steps is a simple definition of non-retrogression, but there is not much consensus or clarity on what exactly could be considered retrogressive or not. A concern is that retrogressive measures might be taken in a time of financial crisis and austerity (e.g. in Europe currently), but human rights should be protected with even more enforced during these periods.

Water charging is being introduced now in Ireland (the last OECD country to do so) after this was required by the IMF and European troika in order to get access to loans to weather the recent financial storm. The big banks have obligations to consider the right to water and sanitation in their actions. Whether this act in Ireland including privatisation was retrogressive or not seems to hinge on whether the right to water and sanitation was considered, were different options for raising finance considered, is privates sector participation regulated, was consultation adequate and are proper measures being taken to minimise potential negative impacts on the poorest and most vulnerable groups. Some retrogressive actions are allowed though. Permissible retrogression allows states some flexibility (that's even harder to define).

The key question is: could cutting aid budgets, spending less on WASH assistance, and tying more aid constitute retrogression on the part of States that have international obligations to support other States in realising the right to water and sanitation?

So here we are with two complicated concepts that are very hard to pin down: sustainability and non-retrogression. Can another report make a difference? And, from the perspective of the IRC International Water and Sanitation Centre's interests in promoting sustainable water and sanitation service delivery to all in low-income countries, what could it usefully say?

As a starting point, building on the idea of 'progressive realisation of rights' more attention could perhaps be given to the statistics that we have (or lack) showing whether people do enjoy a right to safe water and sanitation.

Every country needs a robust system for monitoring. At the global level the UNICEF/WHO Joint Monitoring Programme do the best they can with data from national household surveys. But most countries use their national provider data as the basis for policy-making and planning. Some like Uganda are showing the way ahead (see RWSN report below). Ethiopia has also recently completed a first nationwide inventory of its water systems (showing a significant reduction in coverage from earlier cruder estimates). These efforts should be applauded and others encouraged. There are plenty of gaps and deficiencies. Places where there is no recent and reliable data available. Often provider data is infrequently updated, may include systems that don't work and is hard to access. Water quality monitoring is rarely routine. Only with better (published) data on achievements in extending access to water and sanitation can States be held accountable to progressive realisation.

The principle of making effective use of maximum available resources links directly to the sustainability debate in the sector. We've recently published research (WP 9, available below) showing how a lack of investment in maintenance (and specifically the irregular and more expensive capital maintenance like replacing a hand pump) is undermining sustainability in places like Ghana, Mozambique and India. We know as a sector that we need to extend better water and sanitation to everyone. But we often neglect consideration of the fact that building is the cheap part. Small piped water supply schemes for example probably cost 2-3 times more to run than to build according to WASHCost. The fact that capital maintenance costs are not being met now doesn't look like effective use of resources over the longer term, although in the short term it might well help us to build more systems.

One consequence of course of focusing on new build and capital investment now is that the burden of operations, minor maintenance and capital maintenance goes up. It's a time bomb that some organisations and countries are rushing to address. Donors, international agencies, NGOs (the Dutch agency DGIS, UNICEF, Rotary International are a few examples) are quickly developing sustainability checks and other new policies to address the issue. Direct support where communities managing water supply systems get help with software or hardware from local government, an NGO or private company, is another area where there needs to be much more investment and effort. Some States and development partners might be asked to explain how maintenance issues are being addressed with proper regards to the roles of different actors and the availability of finance – taking into account the human rights.

Secondly, much more monitoring is needed of budgets and costs (what the sector spends money on rather than its performance) would surely help as well. This is a difficult area with big methodological challenges and data can be hard to access. Another UN initiative, the Global Analysis and Assessment of Sanitation and Drinking-Water (GLAAS), also tries to pull together such figures with a report in 2012 covering some 75 low- and middle-income countries. We heard how this shows a lack of financing overall, a problem that will get worse now that aid is declining, but there is an especially big deficit in financing maintenance. Slippage is anticipated. But only about 20 countries could report well on where money goes, and four could report on impacts on household level budgets.

Understanding budgets means having a functional classification to capture money for water and sanitation that comes under different ministries and budget lines. Ultimately we can aim for consolidated budgets that show all funds including aid. It's hard work but done well and made accessible, it could provide a major step forwards.

Related WASH terminology:

Coverage: % of people with access to an improved water supply or appropriate sanitation facilities

Slippage: falling back in coverage due to population increases and the failure of existing infrastructure

Stagnation: little change in coverage over time e.g. due to the increased costs and difficulties of extending access further once coverage reaches 60-80%, requirements to invest more and more in recurrent expenditure and capital maintenance, and the failure of existing infrastructure.

Universal access: everyone has access, and ideally it would be everyone, forever.

Asset management: managing assets that compose water and sanitation systems through a combination of management, financial, economic, engineering and other practices to provide the required services in the most cost-effective manner.

Sustainable cost recovery: making sure all costs are covered through some mix of tariffs, taxes and transfers.

Capital maintenance: those irregular, lumpy costs (e.g. handpump replacement) that are greater to predict than minor and more regular maintenance

Human rights terminology:

Progressive realisation: making positive steps over time to realise the right to water and sanitation

Prohibition of retrogression: the presumption that its not allowed to go backwards and take measures that infringe the right to water and sanitation

Permissible retrogression: backward steps that are allowed when necessary and properly justified (otherwise they are impermissible)

Use of maximum available resources: making full or effective use of all the resources that are available, taking every effort