News & Analysis

Right to Water as a Socioeconomic Right: International Legal Framework

Published

1 year ago

December 11, 2021

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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.

References

Albuquerque, C., “Climate Change and the Human Rights to Water and Sanitation.” (2010)< https://www2.ohchr.org/ english/issues/water/iexpert/docs/ClimateChange_HRtWS.pdf> (Accessed 11 December 2021).

CESR, ‘What Are Economic, Social and Cultural Rights?’ (3 December 2008), Available at: https://www.cesr.org/what-are-economic-social-and-cultural-rights (Accessed 29 October 2020).

Centre on Housing Rights and Evictions and others (eds), Manual on the Right to Water and Sanitation: A Tool to Assist Policy Makers and Practitioners Develop Strategies for Implementing the Human Right to Water and Sanitation (Centre on Housing Rights and Evictions 2007);

Dawood Ahmed and Elliot Bulmer, ‘Social and Economic Rights,’ International IDEA Constitution-Building Primer 9, International Institute for Democracy and Electoral Assistance (International IDEA), Second edition, 2017, Available at: https://www.idea.int/sites/default/files/publications/social-and-economic-rights-primer.pdf (Accessed 20 October, 2020).

Dos Santos, S. and others, ‘Urban Growth and Water Access in Sub-Saharan Africa: Progress, Challenges, and Emerging Research Directions’ (2017) 607–608 Science of The Total Environment 497.

Dublin Statement on Water and Sustainable Development’ (1992) 10 Waterlines 4, Available at: http://www.cawater-info.net/library/eng/l/dublin.pdf (Accessed on 11 December 2021)

General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), Adopted at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003 (Contained in Document E/C.12/2002/11).

Human Rights Watch, “‘There Is No Time Left.’” (2 Jan. 2019), Available at: www.hrw.org/report/2015/ 10/15/there-no-timeleft/climate-change-environmental-threats-and-human-rights-turkana; (Accessed 1 December 2021).

Kiefer, T., Winkler, I., and Cacciaguidi-Fahy, S., “Legal Resources for the Right to Water and Sanitation. International and National Standards.” International and National Standards – 2^nd Edition (2008).

McGraw, G. S. “Defining and defending the right to water and its minimum core: legal construction and the role of national jurisprudence.” Loy. U. Chi. Int’l L. Rev. 8 (2010): 127.

Lancet Global Health, ‘Water and Sanitation in a Post-COVID World’ (2020) 8 The Lancet Global Health e1101.

Ling San Lau and others, ‘COVID-19 in Humanitarian Settings and Lessons Learned from Past Epidemics’ (2020) 26 Nature Medicine 647.

Nicol, A., ‘The Pandemic Is Laying Bare a Global Water Crisis’ (Foreign Policy) accessed 28 October 2020;

Safe Drinking Water Foundation, ‘Human Rights,’ Available at: https://www.safewater.org/fact-sheets-1/2017/1/23/human-rights (accessed 28 October 2020).

UN-Water, ‘Water’ (21 December 2015) https://www.un.org/en/sections/issues-depth/water/ (accessed 28 October 2020).

UN-Water, ‘UN World Water Development Report 2020 “Water and Climate Change”’ (UN-Water, 21 March 2020) accessed 28 October 2020.

United Nations, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4);

UN General Assembly, The human right to water and sanitation: resolution / adopted by the General Assembly, 3 August 2010, A/RES/64/292.

UN, ‘International Decade for Action “Water for Life” 2005-2015. Focus Areas: The Human Right to Water and Sanitation’ https://www.un.org/waterforlifedecade/human_right_to_water.shtml (accessed 21 October 2020).

UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1. 25.

World Health Organization. Water, sanitation, hygiene, and waste management for the COVID-19 virus: interim guidance, 23 April 2020. No. WHO/2019-nCoV/IPC_WASH/2020.3. World Health Organization, 2020.

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News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration

Published

1 day ago

May 30, 2023

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H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

(more…)

News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)

Published

6 days ago

May 26, 2023

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By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20^th Century during the first Hague Peace Conference held between 18^th May and 29^th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.

Reference

PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25^th May 2023).

News & Analysis

Former KCB Company Secretary Sues Over Unlawful Dismissal

Published

4 months ago

January 19, 2023

Admin

Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.