Keynote by Catarina de Albuquerque, Special Rapporteur on the human right to safe drinking water and sanitation: Consultation on Post 2015 Indicators for Water and Sanitation

3 May 2011

I. Introduction

It am very happy to be with you today to speak about the post-2015 development agenda with regard to the targets on water and sanitation. I commend WHO and UNICEF for engaging in this challenging discussion, and am very much looking forward to our deliberations in the coming days, and months. I am here today to explain the human rights framework - what it is, what it is not - and to explain the opportunities I see for the JMP and other monitoring tools to enhance the realization of the rights to water and sanitation around the world.

I think I can say that we all want the same thing. We want a world where everyone has access to sanitation and water. We want a world where people do not get sick from the water they drink or make other people sick because they are forced to defecate in the open. We want a world where people do not have to choose between taking their child to the doctor and paying their water bills. We want a world where everyone has the opportunity to engage in democratic processes and where Governments are accountable to their people. This last point may seemingly take us beyond the water and sanitation sector, but it is all connected as I hope will become clear in our discussions in the next few days.

The good news is that I think we can do this. In the room today, we have diverse stakeholders, we have people who have been thinking about these issues for decades, we have people who want to move this discussion forward in a way that takes us towards a new reality where there is universal access to safe and affordable water and sanitation. This combination of political will and personal convictions has incredible potential to change the world.

II. Human Rights Explained

So what does human rights bring to this discussion? As I said, we all want the same thing. Human rights may articulate it differently, but much of it is common sense. My interactions with people working on the ground and my visits to projects being implemented in various countries – has demonstrated to me that I am often knocking on an open door. Happily, in the past three years, I have realized, and been reassured to know that, what we say in human rights is very much complementary to what practitioners are saying. What we bring with human rights is the norms and legal standards to back up these very sensible arguments. We also shift the focus from charity to entitlement, from benevolence to empowerment. This means that water and sanitation are much more than a mere “good idea.” Good ideas are not legally binding, good ideas are subject to revocation, good ideas are presented and withdrawn according to political impulse and good ideas are not claimable.

I might label what I see – the good and the bad elements of a certain practice – differently from water and sanitation professionals. But our approaches are harmonious and we often point out similar successes and shortcomings in water and sanitation interventions. Nevertheless, we may still approach these questions differently. Discussions like these play an important role in identifying the nature of our disagreements in order to move towards clearer consensus and a wider coalition for progress.

I think it is important to address our “false” disagreements or misconceptions early on in this meeting. The language of human rights has been widely utilized and it means many different things to different people. The human rights that I talk about are, in fact, a very technical matter. They are not about nice slogans on T-shirts. These are the rights contained in legal instruments and guaranteed under international law. These rights have specific legal meaning, and, unfortunately, this meaning is often not conveyed accurately in public discourse - especially when it comes to the rights to water and sanitation. In fact, I find that most of my time as Special Rapporteur is spent addressing misconceptions. Here are the most common ones I face:

First misconception: The human right to water means that water must be free. This is not true. The human right to water requires that water is affordable to everyone. This means that an assessment needs to be made of whether people can afford to pay, and where people are genuinely unable to, the State must design measures to address this reality. The measures a State chooses to address this are the prerogative of the State. Some States may choose to adopt a free basic water policy, others may adopt targeted subsidies. Human rights do not prescribe particular policy options, but offer a guiding framework of the outcomes to be achieved . What matters is that everyone has access to safe water and sanitation that he or she can afford.

Second misconception: The human rights to water and sanitation prohibit private sector participation. No, human rights do not take a side on the public vs private debate. What we look at is the impact on the enjoyment of the rights. How is the system set up, whether public or private, to ensure access to safe water and sanitation which is affordable, sufficiently available, and acceptable without discrimination. This requires regulatory systems to monitor these impacts, regardless of whether services are provided by a public or private entity.

Third misconception: The human rights to water and sanitation mean that everyone is entitled to a tap and flush toilet tomorrow. Again no. Human rights do not expect overnight solutions to these problems. Instead, these are obligations of progressive realization, which means that States are obliged to take steps towards the full realization of the rights. The obligation to take steps suggests that the Government must know what it is moving towards, what its goal is. In this regard, having a vision and a strategy is absolutely crucial. The Government must articulate its plan for working towards universal access, and the steps it intends to take to achieve this.

So if these are examples of what the human rights to water and sanitation are NOT, what are these rights, and why are they relevant to the work and to the vast experience in the water and sanitation sector?

The human rights to water and sanitation provide for a certain standard to be achieved. They provide a pragmatic framework for setting ambitious but realistic goals. This is embodied in the normative content of the rights, which have been described in terms of availability, quality, acceptability, accessibility, and affordability: 1.Availability: The human right to water is limited to personal and domestic uses. The amount of water available, and the number of sanitation facilities, must be sufficient for these uses.
2.Quality: Water has to be safe to drink and use. Sanitation facilities must be hygienically and technically safe to use. Access to water for cleansing and hand washing after use is also essential.
3.Acceptability: Sanitation facilities, in particular, have to be culturally acceptable. This will often require gender-specific facilities, constructed in a way that ensures privacy and dignity.
4.Accessibility: Water and sanitation services must be accessible to everyone in the household or its vicinity on a continuous and reliable basis.
5.Affordability: As I have already explained sanitation and water must be affordable, and this is not the same thing as free.

These elements are clearly interrelated. While access to water may be guaranteed in theory, in reality, if it is too expensive, people do not have access. Women will not use sanitation facilities which are not maintained or are not sex segregated. Having a tap which delivers unsafe water does not improve one’s access. Human rights demand a holistic understanding of access to water and sanitation, as do successful development interventions.

If these elements define the type of access that we are aiming at, human rights also asks the critical question of who does not have access and why. The “who” is the most excluded, the most marginalized, those living in poverty. The “why,” well it stems from numerous reasons. There might be technical problems with extending the water and sanitation network to remote rural areas. There might be resource contraints to consider. Technical and resource constraints are real challenges for us to grapple with. But I think our bigger problem is political will - or lack of it. In my work, I have seen that it is always the same people who are excluded. It is the poor, the indigenous, the ethnic minorities, the migrants, the slum dwellers. It is women who face particular challenges because of social roles attached to collection of water, caring for the sick and domestic tasks for which water is essential. It is people with disabilities who are often excluded from access because their specific needs are neglected. Frequently, different forms of discrimination intersect to deny these people access to water and sanitation, but also a host of other rights, including education, health, housing and work.

I know that water and sanitation professionals witness the same. I do not think this is a coincidence. In human rights language, this is called discrimination, and discrimination on certain grounds is prohibited by law. It is important to realize that not all forms of disparity represent prohibited discrimination. In fact, differential treatment of certain groups, including positive measures, may be required to address historic discrimination against them. Non-discrimination is similar to the concept of equity, which is often used to address the reality of inequalities in society. However there is a crucial difference between non discrimination and equity, as the former is prohibited by law.

Some people have told me that we do not need to focus on marginalised groups specifically, because any progress will trickle down and benefit everyone. Unfortunately this has not proven to be the case. In one country I visited, I asked how they could claim over 95 per cent access to water when millions live in slums with no access. The answer I got: “They are illegal, they don’t count”. For human rights, they do count. Everyone counts. And a deliberate focus on the elimination of discrimination is fundamental in this regard.

Furthermore, the human rights framework requires a process that ensures full and meaningful participation, transparency, and access to remedies in cases of violations. Water and sanitation are no longer matters of charity, but entitlements for which the authorities can be held accountable. In a recent country mission, I have witnessed how speaking about a problem of sanitation technology in human rights terms changed the debate and empowered a community to have their voice heard. Instead of “accepting” the imposition of a heavy sanitation infrastructure that the community could not afford, they were able to demand alternatives, in short, they claimed their rights. In other cases, individuals have appealed to the courts or administrative tribunals to ensure protection of their rights. By claiming their rights, people are no longer passive benecifiaries but empowered rights holders with legitimate entitlements.

I have already explained the progressive nature of these rights and the obligation to take steps. To be more specific, the rights to water and sanitation must be progressively realized to the maximum of available resources. This requires looking at how the water and sanitation sector is financed and how funds are targeted. Where a State can justify that it does not have sufficient resources at its disposal, it is obliged to request international assistance, which can take many forms. Measuring whether Governments are making efforts towards the realization of the rights to water and sanitation to the maximum of available resources is an important budding area of work.

The obligation to take steps includes a strong presumption against retrogressive measures. Therefore, when access to water and sanitation deteriorates because of Government action or inaction, the burden is on the Government to demonstrate that this backwards move is justified in the context of the totality of human rights requirements. Without such justification, we find that the Government is failing in its duties under human rights law.

Transparent processes and meaningful opportunities for engagement contribute towards accountability for policies on water and sanitation, and it is widely agreed that these also create more sustainable outcomes. Ensuring access to a remedy is another important part of accountability. Accountability is the teeth of human rights, this is why it is compelling, and why it can sometimes create tense discussions with authorities.

Human rights are political - they address the relationship between people and their Governments and reveal an inherent tension that lives in that relationship. They protect individual rights, pay special attention to the most disadvantaged people and communities and will necessarily imply a limitation on the State’s powers. As such, human rights affect the distribution of power within a State.

I dare say that oftentimes those who hold power see human rights as a threat, because they fail to see that their power will be more legitimate if it emanates from an engaged and empowered society. I dare also say that those who lack power see hope in human rights to transform their society and to improve their lives. I think acknowledging the political nature of human rights is crucial, because this can be something that scares some away, because they hold power or because they do not wish to antagonize those who hold power. However, we also need to acknowledge that lack of access to safe water and sanitation for certain groups is a result of these power dynamics and a product of political processes which exclude them. I firmly believe that human rights have a clear role in addressing this problem. Any attempt to address lack of access to water and sanitation in a holistic manner must include attention to the politics at play.

III. Why are human rights relevant to the Joint Monitoring Programme and other monitoring tools

The mandate the UN gave me calls upon me to monitor the way in which the human rights to safe drinking water and sanitation are being realized throughout the world and to identify challenges in the implementation of these rights, among other tasks. Currently, unfortunately, the MDG monitoring framework presents challenges for me. The MDGs, which have never been intended as one-size-fits-all solutions, have frequently been misunderstood and applied literally at the national level. I have visited countries which might be considered MDG “heroes” and when I was critical about the thousands of people who were left behind, I was told “but we are meeting the MDGs”.

The JMP has an opportunity to be more holistic in its understanding of access, and to include a break-down of who has access and who does not. This information would help me in my work (and in the work of other human rights monitoring mechanisms) because, combined with a more qualitative analysis, it provides compelling arguments and incentives for better policy making, which assists Governments to comply with the obligations they have signed up for under human rights law. I would say that it is also a question of coherence and of sending a unified message to States. Of course, data collection alone is not enough, other initiatives of States, the UN, development actors, and civil society will be required to use this information to address human rights concerns in a constructive manner. But a robust understanding of who has what kind of access and the processes in place to facilitate meaningful participation and accountability is an essential starting point to analyzing whether human rights concerns exist and how to respond to these.

The JMP and GLAAS will not, and should not, become human rights monitoring tools in and of themselves. But these instruments can make significant contributions to better human rights monitoring, not only my own, but also that of other human rights bodies.

Using the human rights framework, I see several areas which could guide the development of new indicators for the post 2015 agenda. Firstly, we can consider the normative content of the rights to water and sanitation. While the JMP currently measures some elements of accessibility, data on reliability and continuity are essential. Work is already ongoing to address the fact that the JMP does not address water quality. Collecting data on whether water and sanitation is affordable will also be critical.

If we consider the obligation of progressive realization, we can look to whether States have recognized the rights to water and sanitation, and translated these into national action plans. Sustainability of water and sanitation facilities will also be a crucial concern in this regard -- the fact that more than half of the hand pumps in Africa are broken down is unacceptable. The obligation to use the maximum of available resources towards the progressive realization of the human rights to water and sanitation will point our focus to funding flows, budgeting and targeting of resources. The probihition of discrimination requires that we understand discriminatory impacts, for instance by disaggregating data according to region, gender, wealth quintile, and security of tenure status.

Integrating human rights into the JMP presupposes a new target for the post 2015 agenda: universal access to sufficient, safe, affordable and acceptable water and sanitation for all without discrimination. The target is a key first step for the eventual development of indicators. States will have to define the new targets for post 2015 and they should explore means to foster genuine broad-based participation in this process. A determinative consideration for any new targets will be whether the target or goal seems achievable. If we are already working towards that target now, perhaps we can demonstrate to decision-makers in 2015 that this is a viable objective, that we are already “on our way” and that we should maintain our ambitious vision.

While this meeting is principally focused on the Joint Monitoring Programme, bringing the human rights dimensions in will require also considering other monitoring tools such as the GLAAS. The JMP, in its present form, is mostly concerned with outcomes. Outcomes, of course, may be the result of accident, pre-existing factors, or outside influences. Human rights is concerned with deliberate efforts by the Government to realize the rights of everyone. This would require more information on commitment, such as the existence of laws and policies for the sector. It would require more information on policy effort, such as financing for implementation of these laws and policies. And it would require more information on the process of achieving those outcomes -- is it equitable? Is it participatory? Are there accountability mechanisms in place? The GLAAS report is already working to capture some of these aspects and I see significant opportunities for continued complementarity between these two monitoring tools and human rights standards, as well as possibilities for expanded coordination.

IV. The way forward

Ladies and Gentlemen, Dear Friends,
The following panel aims to unpack some important aspects of human rights in order to foster better understanding of human rights, and its complementary nature to the JMP, GLAAS and other monitoring tools.

Human rights are often criticized for being unrealistic. And it is true that the new target I mentioned before of universal access to sufficient, safe, affordable and acceptable water and sanitation is extremely ambitious – at least for some. Maybe we will not get there anytime soon for every single person on earth. Maybe not in our lifetimes. But I believe in stating our goal clearly. I believe that we need to state our goal even if we are not yet quite sure how or when we will achieve it. The goal is a starting point -- it is through our articulation of a clear vision that we will innovate, develop new ways of monitoring, implement new strategies to expand access, and we will find solutions to previously unanswered questions. It will be crucial to adapt our strategies to national and local contexts. But global monitoring initiatives have a leadership role to play.
I think that this meeting is an important step in this journey to answering these questions and I look forward to our deliberations. Am I meaning that this will be easy and swift? No. I understand the many difficulties and problems ahead. But as Pessoa, my favourite Portuguese poet, once put it: “Stones on my way? I collect them all. One day I will build a castle!”