The right to water » Conventions and Legislations » The Special Rapporteur collects court cases on the right to water

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The Special Rapporteur collects court cases on the right to water

October 15, 2014 by   ·   No comments

Courts can determine whether rights have been violated and if so, what remedies should be provided. Depending on their national legal systems, judges can rely on international human rights law in their judgements. Where national legal systems do not explicitly guarantee the rights to water and sanitation, case law shows that the rights to water and sanitation is seen as being part of the right to life or health, among others. On her website the Special Rapporteur on the right to water has collected a few examples of how the rights to water and sanitation have been enforced in different ways, in several countries.

Cases on the rights to water and sanitation in Argentina

In India, the rights to water and sanitation have been successfully enforced under the Constitutional guarantee of the right to life, as judges interpret water and sanitation as fundamental components of this right.

Civil Association for Equality and Justice vs. City of Buenos Aires, Chamber for Administrative Matters of the City of Buenos Aires, 18 July 2007

In this case, water for the residents of four areas in Villa 31 bis, an informal settlement in central Buenos Aires was supplied by water tanker trucks and cisterns. This supply was interrupted by the City of Buenos Aires in June 2006.

The residents together with the Civil Association for Equality and Justice then applied for an injunction against the City of Buenos Aires at the local Administrative and Fiscal Court. The Court granted the injunction. It ruled that the City of Buenos Aires must, as an interim measure, resume the provision of water to all residents of the area by means of tanker trucks and cisterns that should supply as much water as necessary, “between 8 am and 10 pm every day of the week, including Sundays”. It also ruled that the City must build infrastructure in order to provide water services to all residents.

The City of Buenos Aires appealed to the Chamber for Administrative Matters against this decision. The Chamber for Administrative Matters upheld the decision of the Court of first instance.

In its reasoning, the Court highlighted the close connection between the right to water and the right to life. In addition, it explained that “the right to adequate housing includes the need for public services like water supply and basic sanitation” and “access to drinking water should be guaranteed in the amounts necessary for the full development of human beings”. The Court also stated “States must adopt measures to progressively achieve the fulfilment of all human rights that are recognized in legal systems”. The Court furthermore reasoned “the government should also bear in mind the specific obligations in terms of social groups in vulnerable situations”.

On the basis of this, the Court ordered the City of Buenos Aires to improve the infrastructure: “all water infrastructure should be of good quality and culturally adequate, taking into account gender, age and privacy needs of the people who live in the area”. The Court referred to CESCR General Comment 15, stating that “an adequate supply of safe water is necessary to prevent death from dehydration, to reduce the risk of diseases related to water and to meet the needs of water for consumption, cooking and personal hygiene”. The Court argued that “when an individual or group is not able to enjoy a fundamental right such as access to drinking water, the State has a duty to take appropriate measures to provide, to at least a basic level, the satisfaction of that vital need”.

In August 2007, the City of Buenos Aires continued the supply of water by means of tanker trucks and cisterns. And, in October 2007, the City began constructing drinking water networks and sewage systems.

Click here for the full text of the original judgement.

Cases on the rights to water and sanitation in India

In India, the rights to water and sanitation have been successfully enforced under the Constitutional guarantee of the right to life, as judges interpret water and sanitation as fundamental components of this right.

The Coca-Cola cases in India

In a number of districts of India, Coca Cola and its subsidiaries are accused of creating severe water shortages for the community by extracting large quantities of water for their factories, affecting both the quantity and quality of water. Coca Cola has the largest soft drink bottling facilities in India. Water is the primary component of the products manufactured by the company.

There have been numerous public protests of The Coca-Cola Company’s operations throughout India, involving thousands of Indian citizens and several non-governmental organizations.

Background to the Coca Cola ground water exploitation case in Kerala

In 1999, the Hindustan Coca-Cola Beverages Private Ltd, a subsidiary of the Atlanta-based Coca-Cola Company, established a plant in Plachimada, in the Palakkad district of Kerala, southern India. The Perumatty Village Council gave a licence to the company to commence production in 2000. Coca Cola drew around 510,000 litres of water each day from boreholes and open wells. For every 3.75 litres of water used by the plant, it produced one litre of product and a large amount of wastewater.

Two years after production local residents repeatedly protested against the plant. Local communities complained that water pollution and extreme water shortages were endangering their lives.

In April 2003, the Perumatty Grama Panchayat (Village Council) refused renewal of Coca-Cola’s licence to operate on the grounds that it was not in the public interest to renew the licence stating:

“…the excessive exploitation of ground water by the Coca-Cola Company in Plachimada is causing acute drinking water scarcity in Perumatty Panchayat and nearby places…”

The Village Council considered revocation of the licence to be necessary in order to protect the interests of local people.

Perumatty Grama Panchayat vs. State of Kerala (16 December 2003)

In December 2003, the Village Council’s decision to revoke the licence was challenged in the High Court of Kerala State. The Court considered two issues: the question of the over exploitation of ground water, and the justification for the Village Council’s decision to revoke the licence.

The Court recognised that the State as a trustee is under a legal duty to protect natural resources. It considered that these resources, meant for public use, cannot be converted into private ownership. The residing judge, Justice K Balakrishnan Nair, asserted that “… it can safely be concluded that the underground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Art.21 of the Constitution of India”.

The Court also emphasised that the Supreme Court of India “repeatedly held that the right to clean air and unpolluted water forms part of the right to life”. The Court concluded that the extraction of 510 kilolitres of water per day was “breaking the natural water cycle’ considering that if there is artificial interference with the ground water collection by excessive extraction, it is sure to create ecological imbalance”. It explained that “if the respondent is permitted to drain away this much of water, every land owner in the area can also do that and if all of them start extracting huge quantities of ground water in no time, the entire Panchayat will turn into a desert”.

The High Court ordered the plant to stop drawing the groundwater within a month, ruling that the amount of water extracted by the plant was illegal. But at the same time, it ordered the Village Council to renew the licence and not interfere with the functioning of the Company as long as it was not extracting the prohibited ground water. Coca-Cola refuted the accusations of excessive exploitation and pollution and lodged an appeal.

See the full text of the judgement here.

In 2005, the divisional bench of the High Court granted permission for the company to extract 500,000 litres from the common ground water per day in the year 2005-2006. The Court also affirmed that the Village Council was not justified in cancelling Coca Cola’s licence to operate until a full scientific assessment had been made of the facts.

Environment & Consumer Protection Foundation vs. Delhi Administration and others, Supreme Court of India, 3 October 2012

In this case, the right to water and sanitation has been interpreted as a fundamental component of the right to education. The Supreme Court ordered that water and sanitation facilities must be provided at all schools for the sole purpose of realising the right to education.

An NGO sought to improve the conditions of water and sanitation at all schools in India. Before this particular case, the Supreme Court had already and repeatedly ordered all States in India to provide basic infrastructure, including toilet facilities and drinking water, in schools to ensure that children could study in a clean and healthy environment. While some States did not comply with these orders, some States submitted details of infrastructure facilities in schools. The information submitted showed that a number of schools did not provide for adequate toilet facilities for boys and girls and some schools did not provide drinking water either.

As a result, the Court passed interim orders on several occasions throughout 2011 and 2012, stating for example “It is imperative that all the schools must provide toilet facilities. Empirical researches have indicated that wherever toilet facilities are not provided in the schools, parents do not send their children (particularly girls) to schools. It clearly violates the right to free and compulsory education of children guaranteed under Article 21-A of the Constitution”.

In this case, the Court reiterated the previous orders and stated: “We notice that some of the States have not fully implemented the directions issued by this Court in Society for Unaided Private Schools of Rajasthan (supra) as well as the provisions contained in the RTE Act. Considering the facts that this Court has already issued various directions for proper implementation of the RTE Act and to frame rules, there is no reason to keep this Writ Petition pending”. The Court directed all States to give effect to its previous orders to provide toilet and water facilities in schools within the following six months. The Court explained that this applies equally to all schools, both State and privately owned, aided or unaided, minority or non-minority. The Court emphasised the need to implement these decisions by stating: “We make it clear that if the directions are not fully implemented, it is open to the aggrieved parties to move this Court for appropriate orders”.

See the full text of the judgement here.

Cases on the rights to water and sanitation in South Africa

The South African Constitution guarantees water as a human right in section 27, whereby everyone has the right to have access to […] sufficient food and water […] and the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

The rights to water and sanitation have been successfully enforced in South Africa, also under other Constitutional rights, such as the right to adequate housing.

Beja and Others vs. Premier of the Western Cape and Others, The High Court Of South Africa, 29 April 2011

In this case, the city of Cape Town wanted to upgrade three areas of informal settlements consisting of 1,316 households. In October 2004, the City approved a project to install communal toilets at a ratio of 1:5, meaning that one toilet would be provided to every five families. In 2007, they started constructing these toilets, but community members were unsatisfied with communal toilets and requested individual toilets for each plot. The City then decided to then construct individual toilets, but expected the community members themselves to build a construction around the toilets to provide for privacy.

After installing the toilets in 2009, most of these toilets were indeed enclosed by residents themselves, but some remained unenclosed. These were completely open and in full view of every person in the community, mostly situated close to the road, and referred to as “a loo with a view”. Community members then sometimes used blankets to cover themselves when using these toilets.

The South African Human Rights Commission investigated a complaint on these toilets, and subsequently, the City tried to build constructions around the remaining ‘open’ toilets. However, unknown members of the community resisted the works and broke down some of the structures built, so that the City interrupted construction.

The judge of the High Court in this case went to observe the situation on the ground. He found that the toilets which had to be enclosed by residents themselves were fixed with whatever mixed material that could be found, and most were unsatisfactory to satisfy dignity and privacy. Also, the toilets were not suited for handicapped, elderly or other vulnerable groups.

The Court decided that the provision of unenclosed toilets for community members violated their constitutional rights. The Court ordered to enclose all 1,316 toilets that form part of the upgrading project.

The judge explained: “The right of access to adequate housing is not to be seen in isolation. It must be seen as a whole, in light of its close relationship with other socio-economic rights, all read together in the setting of the Constitution. It is unquestionable that the State is obliged to take positive action to meet the needs of those living in extreme conditions of poverty and intolerably inadequate housing”. The Court furthermore referred to other judgements and concluded that the State is obliged to “treat vulnerable people with care and concern and treat human beings as human beings”. Municipalities must provide all residents with ‘the minimum level of basic services’. The Court argued that those minimum levels include the provision of sanitation and toilet services that guarantee the safety and privacy of users and are compliant with the fundamental rights safeguarded in the Constitution. “Any housing development which does not provide for toilets with adequate privacy and safety would be inconsistent with s 26 of the Constitution and would be in violation of the constitutional rights to privacy and dignity”.

The Court held that the City’s decision to install unenclosed toilets lacked reasonableness and fairness; this decision was unlawful and violated constitutional rights. Also, “the legal obligation to reasonably engage the local community in matters relating to the provision of access to adequate housing which includes reasonable access to toilet facilities in order to treat residents “with respect and care for their dignity” was not taken into account when the City decided to install the unenclosed toilets”.

Click here for a full text of the judgement.

City of Cape Town vs. Strümpher, Supreme Court of Appeal of South Africa, 30 March 2012

In this case, the City had supplied water to a caravan park for the last 37 years. In May 2007, the City notified a resident (the respondent in this case) that the water supply would be disconnected if arrears were not paid within two days.

Before the City communicated this, the respondent’s water usage had been exceptionally high. This was examined, and the City concluded that it was due to a defective water meter and leaking pipes. Both the meter and main connection were replaced, but leakages remained, and the respondent reported this to the City. When the respondent received the City’s notification, he questioned the City’s claims of the arrears, arguing that the high water usage was a result of the defective water meter and the leaking pipes.

In August 2007, the City disconnected the water supply without addressing the current dispute over the arrears, arguing payments may not be withheld – even in case of a dispute. The respondent then went to Court and argued that the water supply could not be disconnected unless the amount in arrears had been legally determined in the City’s favour.

The Strand Magistrates’ Court granted a spoliation order and directed the City to reconnect the client to the water supply.

The City then appealed to the Supreme Court of Appeal. It argued that the disconnection was legitimized, since the respondent’s right to the water supply system was based on the contractual relationship between the City and the respondent, and because the water supply is subject to the payment of fees.

The Court of Appeal dismissed the appeal and upheld the order from the Magistrates’ Court. The Court ruled that the “right to water is a basic right” and the government has a “duty to take reasonable measures to achieve progressive realization” to provide these services in a “sustainable manner”. The Court concluded that the respondent’s right to water supply does not merely stem from the contractual relationship with the City. The Court stressed that “the respondent’s rights to water were not merely personal rights flowing from a contract but public law rights to receive water, which exist independently of any contractual relationship the respondent had with the City”.

Click here for the full text of the judgement.

The rights to water and sanitation enforced by regional courts

Regional Courts fulfil an important role as interpreters of treaty law and international human rights law. Their case law guide member States in applying and interpreting human rights in a just and consistent manner. The Inter-American Court of Human Rights, the European Court of Human Rights and the African Court on Human and Peoples’ Rights can enforce the rights to water and sanitation with binding decisions.

Xákmok Kásek vs. Paraguay, Inter-American Court of Human Rights, 26 August 2010

In 2009, the Inter-American Commission submitted an application against the Republic of Paraguay, after receiving a complaint in 2001 from community leaders of the Xákmok Kásek indigenous community about their living conditions after losing access to their traditional lands.

The indigenous community used to live on a territory in the area of Chaco, Paraguay. By the end of the 19th century, the State sold two-thirds of this territory without the knowledge of the inhabitants of the area. Since then, the lands of the Paraguayan Chaco have been transferred to private owners and divided up over the years. This, and increased agriculture and industries in the area, forced the indigenous peoples to resort to providing cheap manual labour for the new companies. Since 2003, the community had no access to water services. Under a special degree in 2009, the State provided the community with water, but the amounts were not sufficient.

In July 2009, after considering that Paraguay had not implemented its recommendations, the Commission decided to submit the case to the Inter-American Court of Human Rights. The Commission asked the Court to declare the State responsible for the violation of several human rights such as the right to life and the rights of the child. The Commission asked the Court to order the State to immediately provide the community with adequate supplies and services, including water, education, medical attention, and access to food necessary for their subsistence.

The Court decided that until the traditional territory or alternate land is delivered to the members of the community, the State must immediately provide sufficient drinking water for the consumption and personal hygiene of the members of the community and install latrines or another adequate sanitation system in the community’s settlement. It furthermore ordered the State to prepare a study within 6 months of the judgement regarding the provision of drinking water and sanitation, including the frequency and method of water deliveries, the method to ensure its purity, the amount of water per person or family, and the type and number of latrines to be provided. The State also had to establish a community development fund as compensation for the non-pecuniary damage that the community had suffered, partly to be used to provide drinking water and to build sanitation infrastructure for the benefits of the community.

In its judgement, the Court argued that under the right to life, states are obliged to ensure the creation of the necessary conditions to prevent violations of this right and to prevent its agents from endangering it. The community had been without water provision since 2003. The Court held that although the State provided water since 2009, these amounts were not sufficient as the water provided by the State between May and August 2009 amounted to no more than 2.17 litres per person per day. The Court referred to CESCR General Comment No. 15 and explained that people need a minimum of 7.5 litres per day to meet their basic needs.

The Court concluded that the measures taken by the State to provide the community with water have not been sufficient to provide the members of the Community with water in sufficient quantity and of adequate quality, and this has exposed them to risks and disease.

Click here for a full text of the judgement.

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