By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
Water is a basic human right which is recognized as such both under international and national laws. It is one of the socioeconomic rights recognized under Article 43(1) of the Constitution of Kenya 2010 which provides that every person has a right “to clean and safe water in adequate quantities.” The international legal instruments especially those on human rights obligate all states the world over to work towards ensuring that their citizens have access to clean and adequate amounts of water. However, for most States, including Kenya, this remains a challenge mostly attributable to climatic, political, economic and social reasons.
Indeed, it has been argued that water is a key medium through which climate change impacts on human populations, society and ecosystems, particularly due to predicted changes in its quality and quantity. Water is also considered to be at the core of sustainable development agenda and is critical for socio-economic development, energy and food production, healthy ecosystems and for human survival itself. It is also said to be at the heart of adaptation to climate change, serving as the crucial link between society and the environment. But despite this important role of water, it is estimated that as at 2020, 2.2 billion people currently do not have access to safely managed drinking water, and 4.2 billion, or 55% of the world’s population, are without safely managed sanitation.
Recent studies have shown that the Corona Virus (Covid-19) global pandemic has not only made things worse as far as access to safe drinking water is concerned but has in fact served to expose how dire the situation is and how there are many people from the poor sections of the society who have no access to clean and safe drinking water. The World Health Organization has already affirmed that the provision of safe water, sanitation and hygienic conditions is essential for protecting human health during all infectious disease outbreaks, including of Corona Virus Disease 2019 (COVID-19).
The international recognition of socio-economic rights like right to water dates from the early20th century, and after the World War II, international treaties and conventions increasingly began to incorporate socio-economic rights, including, the Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, International Convention on the Elimination of All Forms of Racial Discrimination, 1965 and the Convention on the Rights of the Child (1989),among others. Economic, social, and cultural rights are defined to include the human right to work, the right to an adequate standard of living, including food, clothing, and housing, the right to physical and mental health, the right to social security, the right to a healthy environment, and the right to education.
While water is not explicitly mentioned as a human right under the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the 1966 International Covenant on Civil and Political Rights, it was, however, implied through other human rights, such as the right to life, right to an adequate standard of living, and the right to health. The realization of these rights is highly dependent on access to safe and adequate water. The first efforts to officially recognize water as a human right were crystallized under the Dublin Statement on Water and Sustainable Development which came as a result of the International Conference on Water and the Environment (ICWE) in Dublin, Ireland, on 26 to 31 January 1992.
The Dublin Statement acknowledges that ‘scarcity and misuse of fresh water pose a serious and growing threat to sustainable development and protection of the environment. Human health and welfare food security, industrial development and the ecosystems on which they depend, are all at risk, unless water and land resources are managed more effectively in the present decade and beyond than they have been in the past.’ The Conference participants called for “fundamental new approaches to the assessment, development and management of freshwater resources, which can only be brought about through political commitment and involvement from the highest levels of government to the smallest communities.” They also observed that commitment will need to be backed by substantial and immediate investments, public awareness campaigns, legislative and institutional changes, technology development, and capacity building programmes as well as a greater recognition of the interdependence of all peoples, and of their place in the natural world.
The Dublin Statement thus called for concerted action to reverse the present trends of overconsumption, pollution, and rising threats from drought and floods. In 2002, the United Nations officially adopted water as a human right through the General Comment 15, of the International Covenant on Economic, Social and Cultural Rights which states as follows: “The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” General Comment 15 was meant to interpret the 1966 Convention on Economic, Social and Cultural Rights confirming the right to water in international law.
On 28 July 2010, through Resolution 64/29221, the United Nations General Assembly recognized the human right to clean drinking water as essential to the realization of all human rights. The right to water is, thus, now internationally considered to be a human right with obligations to States to ensure that their subjects have access to clean and safe drinking water and sanitation. The prominence of this right to water received a boosting under Goal 6 of the United Nations 2030 Agenda for Sustainable Development Goals which is dedicated to ensuring availability and sustainable management of water and sanitation for all. It requires all States to ensure that by 2030, they achieve universal and equitable access to safe and affordable drinking water for all.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Fulfilling the Right to Water as a Socioeconomic Right for the People of Kenya, https://kmco.co.ke/wp-content/uploads/ 2020/11/Fulfilling-the-Right-to-Water-as-a-Socioeconomic-Right-for-the-People-of-Kenya-Kariuki-Muigua-Ph-D.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021.
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