New Zealand Journal of Environmental Law
Last Updated: 29 January 2023
Road to 2015:
The European Union and the
Realisation of the Human Right to Water
Following the formal recognition of the human right to drinking water and sanitation by the United Nations (UN) General Assembly and Human Rights Council in 2010, one can wonder to what extent the normative content of the right to water is efficiently implemented in the European Union in accordance with the obligations of result laid down under arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights. Adopting a rights-based approach, this article considers the realisation of the quality, accessibility and affordability contents of the right to water in the EU legislation and its compliance with Member States’ obligations under international and European human rights instruments, before examining the institutional endorsement of the right in the EU legal order.
On World Water Day 2011,1 Mrs Catherine Ashton, the European Union (EU) High Representative for Foreign Affairs and Security Policy, declared that “[a]ccess to safe drinking water and adequate sanitation are essential if people are to live healthily and with dignity”. She further added:2
*Mr Vivien Deloge LLM MA (Louvain), LLM (Envir) (Hons) (Auckland); NZFFF Excellence Scholar (2011) <email@example.com>. The article was written for the subject International Human Rights LawPubl 736 at the University of Auckland in 2011. The author is grateful to Professor Manfred Nowak for his encouraging comments on this research.
All countries bear the responsibility to realize that people enjoy their full human rights, and that they have equal access to health care, education, safe drinking water and sanitation, social and other basic services.
The link between safe drinking water and sanitation was clearly made by Mrs Ashton as on 28 July 2010 the General Assembly of the UN3 acknowledged in Resolution 64/292 on the Human Right to Water and Sanitation “the importance of equitable access to safe and clean drinking water and sanitation as an integral component of the realisation of all human rights”,4 before formally recognising “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”.5 Paragraph 2 of the Resolution urges States and international organisations “to provide financial resources ... to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all”.6 Therefore, one can construe from the latter elements listed by the General Assembly that the normative content of the right to water imposes on States binding obligations to respect, to protect and to ensure the principles of availability, quality (safe and clean), accessibility and affordability of drinking water,7 as identified by Mrs Catarina de Albuquerque, then UN Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation,8 in her 2010 Report on Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation.9 This was made in consistency with the 2005 Draft Guidelines for the Realization of the Right to Drinking Water and Sanitation10 and General Comment No. 15 (2002) of the Committee on Economic, Social and Cultural Rights (CESCR) of the UN Economic and Social Council (ECOSOC) dedicated to the Right to Water.11
on behalf of the European Union on the Occasion of the World Water and European Water Day (22 March)” (press release, 22 March 2011).
On 30 September 2010, the UN Human Rights Council (HRC) adopted Resolution 15/9 on Human Rights and Access to Safe Drinking Water and Sanitation aimed at clarifying the legal basis of the newly recognised right, in which it affirmed that:12
... the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity.
Therefore, by enshrining the right to drinking water13 within the framework of the right to an adequate standard of living stated under art 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)14 — which comprises the right to adequate food, clothing and housing — the Human Rights Council did not only derive the right to water from the narrower rights to housing15 or to food16 but from a broader framework, then allowing a broader application of the newly recognised right. The connections made with the right to health and the right to life and human dignity are in this respect consistent with General Comment No. 14 on the right to health17 under art 12 ICESCR, and General Comment No. 6 on the right to life18 as stated under art 6 of the
December 1966, entered into force 3 January 1976), art 11(1).
International Covenant for Civil and Political Rights (ICCPR),19 together with General Comment No. 15 on the right to water.20 Moreover, the Human Rights Council further stated in Resolution 15/9 that the obligation to realise fully all human rights relies on States even when the delivery of drinking water and sanitation services is ensured by third parties, i.e. the private sector.21 Lastly, one can mention paragraph 9(b) of the Resolution where States are reminded that when privatesector companies are to provide water services, the former should ensure that the latter “[c]ontribute to the provision of a regular supply of safe, acceptable, accessible and affordable drinking water and sanitation services of good quality and sufficient quantity”, in accordance with the previous paragraph aforementioned.22
Thereby, the HRC confirmed the notions of availability, quality — which encompasses those of safety and acceptability — accessibility and affordability as the core principles of the human right to drinking water. A further confirmation is to be found in Resolution 16/2 appointing Mrs de Albuquerque as Special Rapporteur on the human right to safe drinking water and sanitation, in which the HRC “[e]ncourages the Special Rapporteur in fulfilling his or her mandate”:23
To promote the full realization of the human right to safe drinking water and sanitation by, inter alia, continuing to give particular emphasis to practical solutions with regard to its implementation, in particular in the context of country missions, and following the criteria of availability, quality, physical accessibility, affordability and acceptability.
One can underline that no mention of the notion of “basic needs” was made in General Assembly and Human Rights Council resolutions whereas many comments were made by scholars to assess what could be inferred from the notion of “basic needs” in terms of legal obligations imposed on States, and minimum amounts of water to which the population should be entitled.24 This
notion was first stated in the Action Plan of the 1977 United Nations Water Conference held in Mar del Plata — the only UN Global Conference dedicated to water25 — under Resolution II on “Community Water Supply” which reads:26
All peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs.
The notion was defined in the 1987 Report of the World Commission on Environment and Development (Our Common Future) in the light of the concept of sustainable development. The Report stated that: “Sustainable development is development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs.”27 “Needs” were identified as a key concept, stressing notably on the “essential needs of the world’s poor, to which an overriding priority should be given”.28 Although not mentioned expressly, General Comment No. 3 on States’ obligations could be construed as a clarification of the notion insofar as the CESCR stated its “view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party”.29 The notion of needs is also present in Agenda 21 which includes a Chapter 18 dedicated to the “Protection of the quality and supply of freshwater resources: application of integrated approaches to the development, management and use of water resources”.30 The 1997 Convention on the Law of the Nonnavigational Uses of International
Laurence Boisson de Chazournes and Nathalie BernasconiOsterwalder (eds) Fresh Water and International Economic Law (Oxford University Press, Oxford, 2005) 93 at 107–108; Nelina Williams “Privatization and the Human Right to Water: Challenges for the New Century (2006–2007) 28 Mich J Int’l L 469 at 470; Pooja Parmar “Revisiting the Human Right to Water” (2008) 28 Austl Feminist LJ 77 at 87.
28 At 43.
Watercourses also addresses the notion of needs under art 10(2), reading that: “In the event of a conflict between uses of an international watercourse, it shall be resolved with reference to arts 5 [‘Equitable and reasonable utilization and participation’] and 7 [‘Obligation not to cause significant harm’], with special regard being given to the requirement of vital human needs.”31 In a chapter dedicated to “Basic Needs and the Right to Health”, the First UN World Water Development Report estimated that “[w]e all need 20 to 50 litres of water free from harmful contaminants each and every day”.32
These resolutions of the General Assembly and the Human Rights Council are of particular symbolic value as these took place within the framework of the International Decade for Action “Water for Life” 2005–2015 declared by the General Assembly in Resolution 58/217 to highlight that “water is critical for sustainable development, including environmental integrity and the eradication of poverty and hunger, and is indispensable for human health and wellbeing”.33 The Water Decade also aims at reasserting the goal stated at para 19 of the 2000 United Nations Millennium Declaration34 completed by para 8 of the 2002 Johannesburg Plan of Implementation of the UN World Summit on Sustainable Development “to halve, by the year 2015, the proportion of people who are unable to reach or to afford safe drinking water ... and the proportion of people who do not have access to basic sanitation”35 (Millennium Development Goal [MDG] 7.C).36
Furthermore, one can argue that primarily deriving the human right to drinking water from the right to an adequate standard of living is consistent with the provisions of the 1979 Convention on the Elimination of All Forms of Discrimination against Women,37 the 1989 United Nations Convention on the
Rights of the Child,38 the 1990 African Charter on the Rights and Welfare of the Child,39 and the 2004 Arab Charter of Human Rights,40 which all enshrined an explicit obligation for States to ensure the provision of drinking water.41 No such obligation is to be found at European level in either the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms42 of the Council of Europe, or in the 2000 Charter of Fundamental Rights of the European Union43 proclaimed on 7 December 2000 and entered into force with the Lisbon Treaty on 1 December 2009.44 Under arts 11(2)(a) and 12(2)(b) ICESCR, States have an obligation as the result to be achieved to take measures to realise “the most efficient development and utilization of natural resources”, and to take steps towards the “improvement of all aspects of environmental and industrial hygiene”. Although the EU itself is not a Party to either ICCPR or ICESCR, all EU Member States are, allowing then the institution of obligations at European level to be respected by States within the framework of the EU’s competences on public health45 and the environment,46 both areas being integrated to the definition and implementation of all EU policies.47 As regards the obligation
47 At art 11: “Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development”; and art 168(1): “A high level of human health
to ensure a right to clean and safe drinking water — the “quality” content of the right — the EU adopted Directive 2000/60/EC establishing a Framework for Community Action in the Field of Water Policy, aiming at ensuring “good ecological status” of EU surface and ground waters before 2015.48 Moreover, EU Member States are required to comply with “essential quality and health parameters” under Directive 98/83/EC on the quality of water intended for human consumption.49 A judicial review is ensured by the Court of Justice of the European Union imposing sanctions on Member States in breach of their “quality” obligation.50
The normative content of the right to water also implies for the EU to comply with the principle of accessibility of drinking water. On the basis of the provisions of the European Convention on Human Rights (EConvHR), the European Court of Human Rights (ECHR) ruled that a breach of the State’s obligation to respect the right to water could amount to a violation of art 3 of the Convention on “inhuman or degrading treatment”. On an external dimension, the achievement of MDG 7.C on access to water and sanitation is part of the EU development policy aiming at eradicating poverty in accordance with the principle of sustainable development laid down under art 3(5) of the Treaty on European Union.51 In this regard, the EU launched the EU Water Initiative at the 2002 World Summit on Sustainable Development with a total allocation of funds amounting to €700 million to date.52 Although not drafted in relation to the achievement of the MDGs, one should also mention the UN Economic Commission for Europe (UNECE) 1999 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes,53 which addresses the obligations of result laid down under arts 12(2)(a), (b) and (c) ICESCR as regards access to water and sanitation and prevention of waterborne diseases.
The right to water requires additionally the application of the principle of affordability, which implies the implementation of special tariff policies
protection shall be ensured in the definition and implementation of all Union policies and activities.”
allowing the most in need not to be precluded from accessing drinking water. Unsuccessful privatisation schemes led to reconsideration of the principle of full recovery of costs generated by investments in water and sanitation services and to favour a sustainable cost recovery principle more likely to take all needs into account. Moreover, the EU Water Framework Directive required Member States to implement by 2010 new tariff policies “to provide adequate incentives for users to use the water resources efficiently”.54 A flagship initiative stressing resource efficiency under the new Europe 2020 Strategy for smart, sustainable and inclusive growth was also initiated.55
However, although focusing on sustainable development and the preservation of environmental resources, one should underline that the new Europe 2020 Strategy set for the next decade fails to link human rights and the environment as it does not address the issue of formal recognition of the human right to water at EU level despites calls from the European Parliament to act in that way. But one should recall the fundamental role played by the Council of Europe in raising awareness of water issues, through the 1967 European Water Charter and the 2001 European Charter for Water Resources, which formally acknowledged the right to water, although in nonbinding instruments.
Therefore, one can wonder to what extent the normative content of the right to drinking water as recognised in GA Resolution 64/292 and HRC Resolution 15/9 is efficiently implemented in the European Union in accordance with the obligations of result laid down under arts 11 and 12 ICESCR.
As there cannot be any right to drinking water without quality and accessible water, one has to analyse whether the EU legal framework complies with ICESCR obligations, before examining whether the connection between human rights and environmental concerns gives room for the right to water within the EU legal order.
2. NO RIGHT TO WATER WITHOUT QUALITY AND ACCESSIBLE WATER: IS THE EU LEGAL ORDER IN
CONFORMITY WITH ICESCR OBLIGATIONS?
“Inextricably related to the right to the highest attainable standard of physical and mental health”,56 the right to water requires “safe and clean” drinking water to be provided to human beings.57 By linking the right to water to the right to
health, EU Member States58 have then an obligation to ensure adequate drinking water quality to their citizens. Water also has to be accessible, a principle which is protected at regional level under the European Convention on Human Rights, and implemented at international level through MDG 7.C.
2.1 Linking the Right to Water to the Right to Health: The Obligation to Ensure Adequate Drinking Water Quality to EU Citizens
A framework was set at European level in Directive 2000/60/EC to achieve “good ecological status” of EU surface and ground waters by 2015. But could the noncompliance by Member States with EU provisions on water quality be sanctioned by the ECJ as a breach of their obligation to fulfil the right to water?
“In view of the importance for public health of water for human consumption”, Directive 80/778/EEC relating to the quality of water intended for human consumption was adopted in 1980 “to lay down quality standards with which such water must comply”,59 General Comment No. 15 and Catarina de Albuquerque having further specified that the water “should be of an acceptable colour, odour and taste for each personal or domestic use”.60 The Directive aimed at setting minimal values for toxic and microbiological parameters not to be exceeded to guarantee the safety of drinking water for consumption. It was revised in 1998 in Directive 98/83/EC with a view to updating such values,61 but it also made a significant progress in guaranteeing the right to health as a new art 1(2) now states:
The objective of this Directive shall be to protect human health from the adverse effects of any contamination of water intended for human consumption by ensuring it is wholesome and clean.
No such reference was included in Directive 80/778/EEC which was limited to technical considerations in relation to water quality.
It is also interesting to note in that respect that the 1996 Communication from the European Commission62 on the European Community Water Policy63 acknowledged the recognition at international level of the notion of needs by stating that: “Water is a basic human need for drinking, preparing food and washing.”64 In this Communication, the Commission considered the fragmentation of EU legal instruments relating to water policy65 and therefore established the benefits of adopting a framework directive that would draw together the quality objective of the relevant legislation and increase the coherence of the policy.66 Consequently, the Water Framework Directive was adopted in 2000 so as to provide, coordinate and integrate common principles to ensure the “protection and sustainable use of water” in the EU.67 Article 4 on “Environmental objectives” contains the obligation as to the result to be attained by Member States to “protect, enhance and restore” all bodies of surface and ground water in order to achieve good ecological status within 15 years, following the standards laid down in Annex V. One can also underline that the Directive first declares at recital (1) that “[w]ater is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such”, then gives a symbolic value to water within the framework of the principle of sustainable development under art 3 TEU.68
As regards “Waters used for the abstraction of drinking water”, art 7 imposes an obligation on Member States to identify such bodies of water “providing more than 10 m3 a day as an average or serving more than 50 persons”, and to monitor those providing “more than 100 m3 a day as an average”.69 Member States are also under an obligation to “ensure the necessary protection” of these bodies of water to avoid any deterioration of their quality.70 The general obligation to set up monitoring programmes is described at art 8 where are stated the factors having to be taken into account.71
Therefore, the Water Framework Directive provides Member States with EU obligations allowing them to respect their international obligations as regards the right to health and the right to an adequate standard of living under the ICESCR. Indeed, if no steps were to be taken by a Member State to ensure good ecological status of its waters by 2015, it would then be in breach of its
65 At 17.
66 At 16.
69 At 7(1).
70 At 7(2).
71 At 8(1).
obligations under EU law but also of its human rights obligations under the ICESCR which calls for the “continuous improvement of living conditions” under art 11(1). The protection of the right to drinking water could then benefit from the provisions of the Drinking Water Directive and the Water Framework Directive. For instance, Barlow and Clarke noted in 2002 the discovery of different “compounds that make up such drugs as ASA, antidepressants, blood pressure medications, ibuprofen, and beta blockers in the water supply in Germany”, together with “serious levels of estrogen from birth control pills”.72 If no action to enhance the quality of water was taken, the Commission could initiate proceedings against that State before the ECJ in accordance with art 258 of the Treaty on the Functioning of the European Union (TFEU). The European Environment — State and Outlook 2010 (SOER 2010) of the European Environment Agency on freshwater quality identified nutrients such as nitrogen and phosphorus, pesticides, and chemicals with endocrinedisruptive properties to be the main threat to water quality in the EU.73 The report underlined the threat to public health posed by toxic cyanobacteria, revealing that “ingestion of the toxins may result in gastrointestinal illness and liver damage” and “can also affect the nervous system”.74 Moreover, the SOER 2010 reported that:75
A recent assessment of European waters indicates that mass populations of bloom, scum, mat and biofilmforming cyanobacteria with cyanotoxin potential are relatively widespread and occur in water resources used for the drinking water supply ... .
If no amelioration of water quality was to be noted, this would amount to a violation of the obligation for States to provide “wholesome and clean” drinking water under Directive 98/83/EC and leave room for judicial review by the ECJ.
Under art 226 TFEU, the Commission is entitled to initiate proceedings before the ECJ when it “considers that a Member State has failed to fulfil an obligation under the Treaties”. The Commission shall first “deliver a reasoned opinion on the matter” to the Member State in order to outline its concerns in which it
Freshwater Quality (Publications Office of the EU, Luxembourg, 2010) at 6.
74 At 21.
75 At 21.
shall lay down a spell of time so as to give the State an opportunity to comply with its obligation. The Member State can address the Commission’s reprimand and submit its views to the institution so as to clarify its position. But if the Commission considers that the State did not comply with its obligation within the period indicated in the reasoned opinion, it may then decide to bring the matter before the ECJ.76
The Commission referred to this procedure in three cases ruled at the beginning of the 2000s: EU Commission v United Kingdom in 2000,77 EU Commission v French Republic in 200178 and EU Commission v Ireland in 2002.79 In the first case, the Commission deemed that the United Kingdom failed to comply with its obligations as stated in Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources,80 namely: the identification of “waters affected by pollution and waters which could be affected by pollution if action ... is not taken”;81 the designation as “vulnerable zones all known areas of land in their territories which drain into the waters [affected by pollution] and which contribute to pollution”;82 and the adoption of “action programmes in respect to designated vulnerable zones”.83 In particular, must be identified waters “used or intended for the abstraction of drinking water” that “contain or could contain ... more than the concentration of nitrates laid down in accordance with Council Directive 75/440/EEC”,84 and “groundwaters [which] have a nitrate content in excess of 50 milligrams per litre [(mg/l)] or could have such content”.85 The Commission held that the United Kingdom only identified “groundwaters intended for human consumption” and not those concerned with the nitrate content aforementioned,86 “failed to designate vulnerable zones in Northern Ireland”87 and also to “establish action programmes in respect of ” the said zones.88
The ECJ considered the Commission’s action well founded insofar as “a directive is binding, as to the result to be achieved, upon each Member State to
80 Directive 91/676/EEC concerning the Protection of Waters against Pollution Caused by Nitrates from Agricultural Sources  OJ L375/1.
81 At 3(1).
82 At 3(2).
83 At 5(1).
87 At .
88 At .
which it is addressed”,89 as stated under art 288 TFEU.90 It further specified that “[t]his obligation entails compliance with the timelimits set by directives”.91 Therefore, the ECJ ruled that “by failing to adopt all the laws, regulations and administrative provisions necessary to comply with the obligations laid down in Article 3(1) and (2) and Article 5 of the Directive, the United Kingdom has failed to fulfil its obligation under that directive”.92
With the recognition of the human right to drinking water, one can suggest that the ECJ could also hold that the Member State breached its obligation to fulfil the right as its normative content expressly includes the criteria of safety and cleanness which are unlikely to be met in that particular case. Moreover, health concerns are expressly referred to in Directive 75/440/EEC which states that the exercise of “surveillance over surface water intended for the abstraction of drinking water and over the purification treatment of such water” “is necessary to protect public health”,93 then echoing directly the provisions of art 12 ICESCR. Besides, General Comment No. 15 recalled that “States parties have a constant and continuing duty under the Covenant to move as expeditiously and effectively as possible towards the full realization of the right to water”,94 which imposes an obligation of time on Member States as to the realisation of their obligations. In addition, as the European Union “is founded on the values of respect for human dignity” — to which HRC Resolution 15/9 refers — and also “the rule of law and respect for human rights”,95 the ECJ could then decide to rule the case on the grounds of human rights provisions. Article 1 of the Charter of Fundamental Rights of the European Union (CFREU) recognises that “[h]uman dignity is inviolable” and “[i]t must be respected and protected”, and art 3 CFREU the right for everyone “to respect for his or her physical and mental integrity”, which could be threatened by the consumption of unsafe drinking water. Therefore, the failure of a State to be as efficient as possible in the implementation of its water obligations under EU law could also be considered as a violation of its obligations under the human right to water. One can also infer this interpretation from the two cases described below pertaining to nitrate and E. coli content in drinking water.
The Commission v French Republic case likewise dealt with the application of Directive 75/440/EEC and the limits set regarding nitrate content in drinking water. Article 3(3) of the Directive notably reads that “Member States are to
89 At .
90 Then: The Treaty Establishing the European Community, art 246. 91 EU Commission v United Kingdom, above n 77, at .
92 At .
93 Treaty Establishing the European Community, above n 90. 94 General Comment No. 15 (2002), above n 7, at .
95 TEU, art 2.
endeavour to comply with the guideline of 25mg/l for nitrate content”.96 Article 4(1) provides that “Member States shall take all necessary measures to ensure that surface water conforms with the values laid down pursuant to Article 3”, and art 4(2) further specifies that they “shall take the necessary measures to ensure continuing improvement of the environment”. The Commission decided to initiate proceedings “[f]ollowing numerous complaints concerning the nitrate content of surface water intended for the abstraction of drinking water in Brittany”.97 In its defence, the French Government contended that the obligations set in arts 3(3) and 4(2) were “not sufficiently absolute to constitute obligations as to the result to be achieved”.98 First agreeing that art 4(2) is not containing “any express qualitative or quantitative prescription in relation to those improvements”, the ECJ then asserted that:99
... it is nevertheless clear that that provision requires Member States, within the 10year period which it lays down, to achieve quantitative values lower than the limiting values which they are required to attain before the expiry of the transposition period of two years laid down by Article 4(1) of the Directive.
Therefore, during this tenyear period Member States are under the obligation “to achieve nitrate contents which are in any event lower than the limiting value of 50mg/l”.100 “[F]ailing to take the necessary measures to ensure that the quality of surface water intended for the abstraction of drinking water conforms to the values” set under art 3, the French Republic was in breach of its obligation to fulfil under art 4 of Directive 75/440/EEC.101
In Commission v Ireland, the Commission instigated proceedings to sanction the failure of Ireland to comply with microbiological parameters 57 and 58 described in Annex I of Directive 80/778/ECC, which resulted in frequently high concentrations of faecal coliforms in the public water supply.102 Ireland did not deny the breaches but it highlighted that in 1998, “92% of the samples taken from public supplies [were] free from coliforms, while 95% were free of faecal coliforms”,103 then revealing only a “very slight” threat to public health.104 But the ECJ dismissed that argument on the grounds that Directive 80/778/EEC “does not establish a mere duty of diligence but an obligation to
96 EU Commission v French Republic, above n 78, at . 97 At .
98 At .
99 At .
100 At .
101 At .
102 EU Commission v Ireland, above n 79, at . 103 At .
104 At .
achieve a particular result”.105 Therefore, the fact that Ireland did take steps to enhance water quality and took “all reasonably practical measures” did not release her from complying with the parameters set in the Directive.106
One can infer from these two cases that the breach by Member States of obligations to fulfil public health requirements under EU legislation related to drinking water could also amount to a breach of the obligation to ensure the right to water in relation to the right to the highest attainable standard of physical and mental health, by failing to “achieve the full realization of this right” as stated under art 12(2) ICESCR. The accession of the EU to the European Convention on Human Rights with the entry into force of the Lisbon Treaty107 gives also more sense and more weight to a human rights interpretation of the EU water policy.
2.2 The Accessibility of the Right to Drinking Water: Regional Protection under the European Convention on Human Rights, International Implementation through the MDGs
Whereas the denial of physical access to drinking water and sanitation by public authorities is prohibited at European level considering States’ obligation to protect the right to water under the European Convention on Human Rights, the realisation of an actual physical access to drinking water is implemented at international level in order to achieve MDG 7.C through notably the EU Water Initiative.
The obligation to respect the right to water implies for Member States to “refrain from interfering directly or indirectly with the enjoyment of the right”.108 The European Court of Human Rights had recently the opportunity to rule on cases relating inter alia to the accessibility of drinking water, in particular in Fedotov v Russia in 2006,109 Riad and Idiab v Belgium in 2008,110 Shchebet v Russia
105 At .
106 At [37–38].
110 Riad and Idiab v Belgium (2008) ECHR (29787/03 and 29810/03), Section I. [Note: Case available in French only.]
also in 2008111 and in Tadevosyan v Armenia in 2009.112 In the first case, the applicant, a Russian national, was wrongly arrested on two occasions by the police because his name was still mentioned on the list issued at federal level of wanted persons. However, the warrant was first cancelled and ultimately the charges against him were dropped considering there was no evidence of the commission of a criminal offence by the applicant, who had been suspected to have made use of nongovernmental organisation funds for his personal gain.113 The applicant was detained a second time for almost ten hours during which “he received no water or food and was given no access to toilet facilities”.114
The applicant argued that the conditions of his detention amounted to a violation of art 3 EConvHR, which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”115 Recalling its previous case law, the Court stated that “illtreatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention”.116 As there was no record of the two detentions of the applicant although the latter requested them, the Court considered that he could not “therefore be criticised for not furnishing substantial evidence of the material conditions of his detention”.117 The ECHR then relied on the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to corroborate the applicant’s allegations. It found that it coincided with CPT observations which notably recorded that “there had been no provision for supplying detainees with food and drinking water and that access to a toilet had been problematic. It stated that such cells were totally unacceptable for extended periods of custody.”118 Consequently, the ECHR ruled as follows:119
The Court notes that the applicant was kept overnight in a cell unfit for an overnight stay, without food or drink or unrestricted access to a toilet. The unsatisfactory conditions exacerbated the mental anguish caused by the unlawful nature of his detention. In these circumstances, the Court considers that the applicant was subjected to inhuman treatment, incompatible with Article 3 of the Convention.
111 Shchebet v Russia (2008) ECHR (16074/07), Section I. 112 Tadevosyan v Armenia (2009) ECHR (41698/04).
113 Fedotov v Russia, above n 109, at [9–14].
114 At .
115 At .
116 At .
117 At .
118 At .
119 At .
Thereby, whilst the denial of physical access to drinking water and sani tation was only one part of the “unsatisfactory conditions” of detention of the applicant, one can assess that it could be inferred from the findings of the ECHR that the obligation to respect the right to water is protected under the European Convention of Human Rights. The fact that the right is not expressly enshrined in the Convention does not prevent the ECHR from guaranteeing its appli cation considering that “the Convention is a living instrument which ... must be interpreted in the light of presentday conditions”.120 Accordingly, the Court could make a direct reference to the right to drinking water in its future case law, thus acknowledging its official recognition by the UN General Assembly and HRC. While addressing the particular issue of armed conflicts, General Comment No. 15 specified that States have an obligation of “ensuring that civilians, internees and prisoners have access to adequate water”.121 One can reasonably maintain that the full realisation of the right to water also implies the application of that principle in time of peace.122 This was acknowledged in General Comment No. 15 at para 16(g).123
In Riad and Idiab v Belgium, two Lebanese citizens — one of whom being officially a Palestinian refugee — were denied entry on Belgian territory on the grounds that they did not have the necessary visa required.124 As they declared to fear for their life in Lebanon, they introduced applications next to the Belgian authorities to have their refugee status recognised.125 The applicants were meanwhile placed in the airport transit area126 where they spent three days with no food or drink, receiving no help or guidance from the public authorities.127 They received foodstuffs unevenly from the cleaning company staff members, the airport managing company, and the Muslim and nonreligious advisors. They had no facilities to take a shower or wash their clothes. Moreover, they were arrested on several occasions by airport police officers and detained several hours with no food or drink, to compel them to accept a voluntary departure.128 In respect of these facts, the ECHR “consider[ed] it unacceptable for a person to be detained in conditions in which no provision has been made for meeting his or her basic needs”.129 The fact that people working in the transit area catered to
120 Tyrer v United Kingdom (1978) ECHR (5856/72) at . 121 General Comment No. 15 (2002), above n 7, at .
122 See mutatis mutandis Kiefer and Brölmann, above n 24, at 187. 123 General Comment No. 15 (2002), above n 7.
124 Riad and Idiab v Belgium, above n 110, at  and .
125 At  and .
126 At  and .
127 At .
128 At .
129 At : “La Cour juge inacceptable que quiconque puisse être détenu dans des conditions impliquant une absence totale de prise en charge de ses besoins essentiels.” Quotation in English from Shchebet v Russia, above n 111, at .
certain needs of the applicants did not excuse the unacceptable situation that the latter had to endure.130 The ECHR then ruled that this amounted to an inhuman and degrading treatment under art 3 EConvHR.131 It adopted the same view in Shchebet v Russia and Tadevosyan v Armenia, which also concerned conditions of detention. In both cases it referred expressly to para 110 of Riad and Idiab v Belgium, making the same statement in English in Shechebet v Russia.132 The ECHR referred to both latter cases in Tadevosyan v Armenia, where it declared as follows:133
The Court finally notes that at no time during his stay in the detention facility was the applicant allowed unrestricted access to the toilet or drinking water, his visits to the toilet or drinking water facilities being limited to only twice a day. Only one meal per day was provided. The Court reiterates that it is unacceptable for a person to be detained in conditions in which no provision has been made for meeting his or her basic needs.
The ECHR thus concluded that there had been a violation of art 3 EConvHR amounting to degrading treatment.134
Therefore, one can infer from these cases that the ECHR requires an unrestricted access to drinking water and sanitation facilities for individuals in detention situations, the complete denial of physical access to these amounting to inhuman and degrading treatment under art 3 EConvHR, and only to degrading treatment when some kind of access is provided on an uneven basis. The “interconnectedness between food and water” emphasised by Mr Jean Ziegler, former Special Rapporteur on the right to food,135 is acknowledged by the ECHR as the violation of these two rights are likely to happen together during situations of detention. Denial of physical access to water constitutes then a violation by the State of its obligation to respect the right to water protected under art 11 ICESCR, together with the right to sanitation and the right to food. The occurrence of mental anguish from the privation of these rights also evidences their relation to art 12 ICESCR on the right to health.
130 At .
131 At .
134 At .
135 Report of the Special Rapporteur on the Right to Food, above n 16.
Regionally protected by the ECHR, the right to water is also internationally implemented by the EU through its development policy in order to achieve the MDG 7.C objective of halving the population lacking access to water and sanitation by 2015. “The MDG constitute a set of eight goals, 18 quantifiable and timebound targets and 48 indicators to be achieved (mostly) by 2015.”136 Various poverty dimensions are addressed by Goals one to seven “such as hunger, disease, lack of education and inadequate access to clean water and sanitation”.137 Considering that “[c]ombating global poverty will also help to build a more stable, peaceful, prosperous and equitable world, reflecting the interdependency of its richer and poorer countries”,138 the EU has committed in the Joint Statement on the European Consensus on Development to “work to assist the achievement of these goals and the development objectives agreed at the major UN conferences and summits”.139 The values on which the EU partnership is based are “respect for human rights, fundamental freedoms, peace, democracy, good governance, gender equality, the rule of law, solidarity and justice”.140 As the “world’s biggest donor, providing almost 56% of global assistance” amounting in 2009 to €49 billion141 — that is to “the tune of €93 per European per year”142 — the EU is also “the largest provider of development assistance for waterrelated initiatives, investing around €1.4 billion a year in water-related development aid and scientific cooperation”.143
The EU is promoting the realisation of the right to water at international level in developing countries in order to provide people with actual access to drinking water. This objective is stated under MDG Target 7 aiming at ensuring environmental sustainability, and not Target 1 dedicated to the eradication of extreme poverty and hunger, which reveals that hunger and thirst seem to be two separate issues on the international agenda whereas the right
139 At .
140 At .
to water is “inextricably” related to the right to health under the ICESCR.144 The Commission acknowledged this by stating that “[w]ater provision cannot be separated from two other interrelated factors — sanitation and health”.145 Warning against the dangers in terms of efficiency of a fragmented policy, the Commission underlined in 2000 that “[s]pecial attention need [sic] also to be paid, through a multisectorial approach, to MDG 1 on nutrition, MDG 3 on gender equality and MDG 7 on environmental sustainability”.146
In 2003, 1.1 billion people did not have access to clean drinking water according to the World Health Organization (WHO), “with almost three times as many people denied even minimal sanitation facilities”.147 In 2010, it was estimated that these numbers fell respectively to 884 million as for access to “improved sources of drinkingwater”, and 2.6 billion as for access to sanitation.148 Whereas the water target is expected to be met and even exceeded
— although 627 million people will still remain with no access149 — the sanitation target should be missed by 13 per cent.150 In 2002, the EU launched the EU Water Initiative (EUWI) so as “to create higher efficiency of water- related development”151 and “to provide a policy framework for policy dialogue with partner countries, using a multistakeholder approach to increase and streamline EU Member State and [EU] support for the sector”.152 The central elements of this initiative are to “[r]einforce political commitment to action”, “[p]romote better water governance arrangements”, “[i]mprove coordination and cooperation”, “[e]ncourage regional and subregional cooperation” and “catalyse additional funding”.153 The Commission stated in 2010 that:154
The initiative has improved the quality of cooperation and coordination between Commission and EU Member States and has developed strong partnerships with key partners, such as the African Ministerial Council on Water (AMCOW) and stakeholders in the water and sanitation sector. It has led
145 COM(2003) 527 final, above n 143, at 247.
to several national policy dialogues to develop strategies for integrated water resources management as well as for sector financing.
Under the 9th European Development Fund (EDF), €500 million was allocated to the first ACP-EU Water Facility aiming at achieving MDG 7.C. One hundred and seventy-five projects were selected to provide water to 14 million more people, improved sanitation to 3.5 million, and 11 million to benefit from hygiene awareness activities.155 A Second Water Facility with a funding of €200 million was launched under the 10th EDF (2008–2013) and split as follows: €110 million for projects corresponding to the call for proposal “Water, Sanitation and Hygiene Promotion for the Millennium Development Goals”, €40 million dedicated to “Partnerships for Capacity Development in the ACP Water and Sanitation Sector”, and €40 million for a pooling mechanism “to co-finance medium-size water and sanitation infrastructure projects with other European donors and development financing institutions”.156 Sixtyseven projects were selected under the first call for proposal, the expected results of which are to provide 3.7 million people with access to safe water, 3 million with sanitation and involve 8 million in hygiene promotion programmes.
Therefore, one can assess the commitment of the European Union to the realisation of the access to the right to water in developing countries in order to meet the 2015 target, and its participation in reducing the risk of waterborne diseases and child mortality and improving the physical and mental standard of health of developing countries’ populations. If the issue of water accessibility remains of tremendous importance in the Least Developed Countries, the concern has shifted in the EU to policy development to cope with the challenge of resource efficiency and sustainable use of water.
3. LINKING HUMAN RIGHTS TO ENVIRONMENTAL CONCERNS: WHAT ROOM FOR THE
RIGHT TO WATER IN THE EU LEGAL ORDER?
Article 11 ICESCR on the right to an adequate standard of living contains the obligation for States to “achieve the most efficient development and utilization of natural resources”.157 In order to deliver affordable drinking water to EU citizens, one can wonder whether a differentiation between users could be
155 At 26.
made to ensure social and environmental objectives compatible with the right to water. The connection between the right to water and sustainability objectives should be enshrined in the EU legal order, as it is already recognised by all Member States within the Council of Europe.
3.1 Delivering Affordable Drinking Water to EU Citizens: a Differentiation Between Users Required to Ensure Social and Environmental Objectives under the Right to Water?
To ensure the supply of affordable drinking water to all EU citizens, Member States have to implement special mechanisms to protect the right to water of the most in need, then differentiate between regular users who have to support greater costs to realise the objective of resource efficiency.
Providing water and sanitation services can prove to be costly, that is why the “full cost recovery” principle was initially promoted by international financial institutions.158 This principle implies the redemption of “all investments related to the provision of water through the pricing of water”.159 But this may consequently “price water higher than some poor and marginalized communities can afford, effectively denying them access to an adequate clean water supply necessary to meet their basic needs”.160 This situation happened in Cochabamba, Bolivia, where the privatisation of water services was required by the World Bank for the city to be granted a US$25 million loan.161 The implementation of the full cost recovery principle led to an immediate threefold increase in water prices with monthly bills amounting to US$20 “in a country where the minimum wage is less than US$60 a month”.162 Cochabamba citizens demonstrated and started a general strike to protest against the infringement of their right to water, bringing the city to a standstill. Violence arose between police forces and protesters and the privatisation agreement was ultimately terminated.163 Bluemel analysed in 2004 that “[t]he Cochabamba Declaration that arose out of the water crisis confirms ... that some communities consider
159 At 962.
160 At 963.
water to be a basic human right, and not purely an economic good”.164 The Declaration notably stated that:165
Water is a fundamental human right and a public trust to be guarded by all levels of government, therefore, it should not be commodified, privatised or traded for commercial purposes. These rights must be enshrined at all levels of government. In particular, an international treaty must ensure these principles are noncontrovertable.
The World Panel on Financing Water Infrastructure, chaired by Mr Michel Camdessus, former Managing Director of the International Monetary Fund, and sponsored by the Global Water Partnership and the World Water Council which are financial stakeholder organisations, acknowledged in its 2003 Report Financing Water for All that “there are situations where full cost recovery is not feasible, or even desirable”.166 It formulated the principle of “sustainable cost recovery”, which is “now considered a more realistic and practical policy principle than ‘full cost recovery’ based on tariffs alone”.167 This concept calls for “finding the right mix between the ultimate revenues for the water sector, the so-called ‘3Ts’: tariffs, taxes and transfers (primarily official development assistance [ODA] grants)”.168 Noting that 45 countries have implemented “social tariffs” to tackle the issue of affordability of water for the poor,169 the Organisation for Economic Cooperation and Development (OECD) underlined that:170
Striking a balance between the financial sustainability of the service provider and the affordability of the service for low income households is seen by many as the key challenge of tariff settings.
On average, it appears that “water and wastewater bills in OECD countries171 are generally less than 1.4% of average household income”.172 However, a study performed within the framework of a tariffs reform in
168 At 13.
169 At 21.
170 At 18.
Portugal revealed that 10.5 per cent of households “would face bills in excess of the national affordability threshold” if the reform was to be applied to all municipalities indiscriminately throughout the country.173 Consequently, the OECD concluded that “[a]ffordability of water bills needs to be assessed locally”.174 This was realised in Belgium, where the Flemish Region recognised in 1997 that “every customer is entitled to a basic uninterrupted supply of ... water for household purposes in order to be able to live decently according to prevailing living standards”.175 A right to a minimum supply of water was implemented, amounting to “15 m3 of free water per person per year”.176 The right to drinking water has also been recognised since 1999 in the Walloon Region where it entitles everyone to “access to drinking water of sufficient quality and quantity to cover their food, domestic and health needs”.177
It is interesting to note that while the Flemish provision refers only to the right to an adequate standard of living, the Walloon one connects also the right to water to the right to health. The progressive tariff in force in the latter region is constituted by four blocks and “provides a minimum block of 30 m3 per household per year at a lower price”.178 Moreover, a Social Fund for Water was instituted in 2003 to provide “financial support to people having difficulties to pay their water bill, and is financed by a tax” of €0.0125 per m3.179 In the BrusselsCapital Region, “the right to distribution of drinking water for household consumption” was adopted in 1994. To provide for the needs of the poorest, mechanisms were implemented such as the possibility to obtain a refund of the sanitation tax which amounts to €0.10.3 per m3.180
In France, 3.6 million people or 1.6 million households with an income level 50 per cent below the median income of €657 per month per person were estimated to face affordability issues in 2007 and 50,000 households received assistance from a public social fund to be able to pay their water bills.181 Families with children and disabled persons are protected against any disconnection from the water supply in case of nonpayment of water bills under the provisions of an agreement concluded between public authorities and utilities.182 It is reported that “20,000 disconnections of poor people per year
173 At 18.
174 At 18.
are taking place from which 2,000 disconnections last more than 24 hours”.183 But with a view to protecting human dignity and health, French courts “usually order the reinstatement of supply” in cases of nonpayment.184 Furthermore, although there is no formal obligation to provide people with free access to drinking water and sanitation in cities of more than 10,000 inhabitants, this is actually realised in all the 873 French cities concerned.185 It is considered that for 96 per cent of the French population, the realisation of the right to drinking water is ensured.186 In the United Kingdom, the Health Protection Agency estimates that 100 per cent of the British population has “continuous access to an improved water supply and improved sanitation”.187 The Water Industry Act 1999 prevents any disconnection from the water supply to “schools, children’s homes, and children’s day care premises” for cause of nonpayment.188
Therefore, although there is no special mechanism aimed at protecting the most in need at EU level, and keeping in mind that the situation in the 12 newest Member States might not be ideal, it appears that EU Member States are implementing such kinds of measures in order to provide actual and affordable access to drinking water to all people in accordance with art 11 ICESCR. On the other hand, what is required from Member States under the EU Water Framework Directive is the implementation of waterpricing policies likely to develop an efficient use of water resources.
General Comment No. 15 asserts that “States parties should adopt compre hensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations”.189 This is in line with art 11(2)(a) ICESCR which imposes on States the obligation “to achieve the most efficient development and utilization of natural resources”. Accordingly, art 9(1) of the EU Water Framework Directive requires Member States to ensure by 2010 “that waterpricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental
188 At 17.
189 General Comment No. 15 (2002), above n 7, at .
objectives of this Directive”. Noting that “[e]ach European uses, on average, 100–200 litres of tap water a day”,190 the European Environment Agency SOER 2010 reported that “[w]ater pricing and metering have been highly effective in changing consumer behaviour in many countries”.191 Indeed, it underlined that:192
Increased water prices have been a major factor in reducing public water demand in Eastern Europe and have contributed to a focus on increasing water saving in Western Europe ... . To optimise the incentives for efficient use of water, pricing must be tied to the volume of water consumed. In this respect, metering plays a key role and should be implemented across all sectors.
Domestic water use in continental Portugal was estimated at 169 litres per person per day in 2008, but tourism areas such as the Algarve in the south recorded a daily consumption of 400 litres per person per day,193 this highlighting the need for measures ensuring an efficient use of water resources. Stressing the fact that “[w]ater needs to be managed in a sustainable way”, the Commission highlighted the central importance of marketbased instruments in order to meet the requirements of the Water Framework Directive.194 The Commission also underlined the “huge potential for water saving across Europe” as it “continues to waste at least 20% of its water due to inefficiency”.195 Asserting that “[w]ater saving must become the priority”,196 the Commission recalled that “[p]ricing policies that may appear to be very well designed can prove totally ineffective if most water abstraction is not even metered or registered by the authorities”.197 It insisted on the fact that the “user pays” principle “needs to become the rule”,198 and that “[t]he challenge of water scarcity and droughts needs to be addressed both as an essential environmental issue and also as a precondition for sustainable economic growth in Europe”.199
190 European Environment Agency The European Environment — State and Outlook 2010. Water Resources: Quantity and Flows (Publications Office of the European Union, Luxembourg, 2010) at 11.
191 At 26.
192 At 26.
199 At 14.
The flagship initiative for a resource-efficient Europe under the Europe 2020 Strategy confirmed this approach, stating as follows:200
A water policy that makes water saving measures and increasing water efficiency [is] a priority, in order to ensure that water is available in sufficient quantities, is of appropriate quality, is used sustainably and with minimum resource input, and is ultimately returned to the environment with acceptable quality.
However, the OECD underlined that legislation currently in force in Spain “does not create any room for charging for environmental costs from water abstractions ... although this is required by the European Water Framework Directive”,201 whereas Portugal did implement an increasing block tariff with a first block of 5 m3 “significantly cheaper than the rest”.202 In Belgium, the progressive tariff in the Flemish Region comprises three elements:203
Firstly, there is a basic fee covering fixed costs of connection, independently from the household consumption; second, there is a free minimal quantity of water supplied to every household (15 m3); and thirdly, there is a variable cost depending on the surplus consumption. The latter cost depends on different blocks of water consumption established by the distribution company in accord with regional authorities.
In France, the city of Rouen applies a five-block progressive tariff. As for the first block of 40 m3, water costs €0.51 per m3; €0.65 per m3 as for the second from 41 to 100 m3; €0.87 per m3 as for the third from 101 to 160 m3; €0.95 per m3 as for the fourth from 161 to 300 m3; and eventually €1 per m3 as for the last block over 300 m3.204 Such a mechanism is definitely likely to change consumption patterns and raise awareness of the true cost of water, allowing EU citizens to “adapt their behaviour accordingly”,205 as it is necessary that “prices reflect the full costs of resource use to society (e.g. in terms of environment and health) and do not create perverse incentives”.206
205 COM(2011) 21, above n 200, at 7.
206 At 7.
General Comment No. 15 states that “[a]ny payment for water services has to be based on the principle of equity”, before adding that “[e]quity demands that poorer households should not be disproportionately burdened with water expenses as compared to richer households”.207 Consequently, the realisation of the principle of affordability of drinking water authorises differentiation between users under the right to water so as to guarantee the objectives of resource efficiency stated under art 11(2)(a) ICESCR. One can only regret that the right to water is not enshrined in the EU legal order, so as to formalise the connections between human rights and sustainability.
3.2 Guaranteeing Sustainability through the Right to Water: the Comple- mentary Frameworks of the European Union and the Council of Europe
The institutional recognition of the right to water is the missing link between the Europe 2020 and the EU Sustainable Development Strategies, but this absence is mitigated by the legal framework of the Council of Europe which has acknowledged the connection between sustainability and human rights.
The Europe 2020 Strategy for smart, sustainable and inclusive growth208 succeeded to the 2000 Lisbon Strategy for growth and jobs209 which set the EU’s “new strategic goal for the [2000–2010] decade”: “to become the most competitive and dynamic knowledgebased economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion”.210 The Lisbon Strategy was launched “as a response to the challenges of globalisation and ageing”,211 and not designed to primarily address environmental concerns. The Stockholm European Council decided in 2001 that an EU Sustainable Development Strategy should “complete and build on this political commitment by including an environmental dimension”, recognising that “in the long term, economic growth, social cohesion and environmental
207 General Comment No. 15 (2002), above n 7, at .
208 COM(2010) 2020, above n 55.
209 European Council “Lisbon Presidency Conclusions”  via Council of the European Union <http://www.consilium.europa.eu> .
210 At .
211 Commission Staff Working Document “Lisbon Strategy Evaluation Document”, SEC(2010) 114 final, at 2.
protection must go hand in hand”.212 In the subsequent Communication on the Strategy for Sustainable Development, the Commission notably declared that:213
The Commission will give priority in its policy and legislative proposals to marketbased approaches that provide price incentives, whenever these are likely to achieve social and environmental objectives in a flexible and cost effective way.
But no specific action as regards water was mentioned in that document. It was addressed in the Communication setting the external dimension of the Sustainable Development Strategy which acknowledged inequalities pertaining to access to fresh water,214 which also noted with concern that “[w]ater consumption is increasing each year by two to three percent”, with the result that “[i]n many places, freshwater resources are being consumed faster than nature can replenish them”.215
In July 2002 the Sixth Environment Action Programme (6th EAP) was implemented in Decision 1600/2002/EC which asserted that “[a] clean and healthy environment is essential for the wellbeing and prosperity of society”.216 The tenyear programme217 aims at “a high level of protection of the environment and human health and at a general improvement in the environment and quality of life”, and indicates “priorities for the environmental dimensions of the Sustainable Development Strategy [that] should be taken into account when bringing forward actions under the Strategy”.218 The Decision also specifies that “[a] prudent use of natural resources and the protection of the global ecosystem together with economic prosperity and a balanced social development are a condition for sustainable development”,219 before mentioning the priority areas of action under the 6th EAP: “climate change, nature and biodiversity, environment and health and quality of life, and natural resources and wastes”.220 While climate change — referred to as “an outstanding
215 At 12.
challenge of the next 10 years and beyond”221 — is clearly the overarching priority of the Programme, water is only included in the “action on environment and health and quality of life” defined under art 7. Targeting notably chemicals, endocrinedisruptive chemicals and pesticides, art 7(1) states the priority to be:
... achieving quality levels of ground and surface water that do not give rise to significant impacts on and risks to human health and the environment, and to ensure that the rates of extraction from water resources are sustainable over the long term.
The promotion of sustainable use of water, together with the objectives of fully implementing the Water Framework Directive and to end “discharges, emissions and losses of Priority Hazardous Substances” were also indicated.222 The Sustainable Development Strategy was renewed in 2005, and although it set the target of phasing out harmful chemicals posing “significant threats to human health and the environment”,223 the right to drinking water was still not addressed.
The new Europe 2020 Strategy adopted on 3 March 2010 proves to realise a more comprehensive approach, tackling notably the reduction of greenhouse gases and recalling the EU commitment to fulfil the MDGs in the same document.224 However, water is not mentioned expressly in the Strategy. As seen above, the flagship initiative for a resource-efficient Europe does refer to water in that part of the Strategy dedicated to sustainable growth but mainly to stress the necessity to adjust waterpricing policy in Member States.225 Therefore, the failure to recognise formally the right to water at EU level appears to be the missing link between the Sustainable Development Strategy and the new Europe 2020 Strategy, whereas it was decided that World Water Day would also be European Water Day from 2010 onwards. Moreover, Catherine Ashton’s statement on World Water Day 2010 only 19 days after the publication of the Europe 2020 Strategy reinforces the impression that the link between sustainability and the right to water could have been acknowledged in the Strategy, insofar as she declared:226
223 Council of the European Union Review of the EU Sustainable Development Strategy (EU SDS) — Renewed Strategy  10917/06 at 15.
224 COM(2010) 2020, above n 55, at 22.
225 COM(2011) 21, above n 200, at 7–8.
226 Council of the European Union “Declaration by the High Representative, Catherine Ashton, on behalf of the EU to commemorate the World Water Day, 22nd March” (press release, 22 March 2010).
The EU reaffirms its commitment to the full realisation of all human rights, considering that all human rights derive from the inherent dignity of the human person.
On World Water Day, the European Union reaffirms that all States bear human rights obligations regarding access to safe drinking water, which must be available, physically accessible, affordable and acceptable.
The EU also recognises that the human rights obligations regarding access to safe drinking water and to sanitation are closely related with individual human rights — as the rights to housing, food and health.
The EU commemorates the 13th World Water Day and celebrates this year the 1st European Water Day. For the EU, 22nd March is a unique occasion to remind us all that solutions are possible, and also that human rights have a decisive contribution to putting these solutions in place.
Thereby, one can but regret the missed opportunity not to have enunciated the same principle within the Europe 2020 Strategy so as to express EU resource-efficiency objectives for the next decade in human rights language, in accordance with art 11(2)(a) ICESCR.
Ten years before the 1977 Mar del Plata Water Conference, the Council of Europe already recognised the necessity to protect and conserve fresh water resources in its 1967 European Water Charter227 proclaimed in Strasbourg on 6 May 1968.228 “Persuaded that the advance of modern civilization leads in certain cases to an increasing deterioration in our natural heritage”, and “[c]onscious that water holds a place of prime importance in that natural heritage”, the Committee of Ministers of the Council of Europe adopted 12 principles to promote a “collective action on European scale” so as to take steps aiming at “qualitative and quantitative conservation of water resources” in the wake of the rapid industrialisation of urban centres occurring across the continent.229 This explains why there has been a strong focus at European level
on water quality since the concern was the protection of existing water supplies from pollution due to the rising demand for water in cities. That is why an economic approach to water was undertaken, as one can note from Principle II entitled “Fresh water resources are not exhaustible. It is essential to conserve, control, and whenever possible, to increase them”, which reads:230
The population explosion and the rapidly expanding needs of modern industry and agriculture are making increasing demands on water resources. It will be impossible to meet these demands and to achieve rising standards of living, unless each one of us regards water as a precious commodity to be preserved and used wisely.
The Charter already mentioned the achievement of standards of living less than a year after the ICESCR was opened for signature, then already linking the new art 11 ICESCR to sustainability concerns. The fact that the Charter referred to “rising” and not “adequate” standards of living can also be seen as a direct echo of the newly recognised right to “continuous improvement of living conditions” stated under art 11(1) ICESCR. Besides, the premise of the right to a healthy environment can be found under Principle III: “To pollute water is to harm man and other living creatures which are dependent on water”, which notably specifies that “[s]urface and underground waters should be preserved from pollution”. Principle IV can be identified as already making the connection between the right to water and the right to health by stating that: “The quality of water must be maintained at levels suitable for the use to be made of it and, in particular, must meet appropriate public health standards.” Eventually, the origin of recital (1) of the Water Framework Directive which states that “[w]ater is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such” can be directly found under Principle X entitled “Water is a common heritage, the value of which must be recognised by all. Everyone has the duty to use water carefully and economically.” This Principle declared that “[e]ach human being is a consumer and user of water and is therefore responsible to other users. To use water thoughtlessly is to misuse our natural heritage.”231
Therefore, more than 40 years before UN General Assembly Resolution 65/164 on Harmony with Nature in which were expressed “concerns about the documented degradation and the negative impact on nature resulting from human activity”,232 and more than 30 years before Directive 2000/60/EC, the 1967 European Water Charter already contained the essential references
232 Resolution on Harmony with Nature GA Res 65/164, 1/Res/65/164 (2010).
allowing the performance of a comprehensive approach to water sustainability when this term had not been used at international level yet. The Council of Europe recast the Charter in 2001 and replaced it with the European Charter on Water Resources,233 which first affirms in the recitals that “water is indispensable to all forms of life” and “an ecological, economic and social asset that is a prerequisite for sustainable development”.234 The connection with sustainable development is then expressly made, acknowledging the progression and recognition of the notion at international and European levels. The main improvement to be enlightened is the formal recognition of the right to water. Indeed, it is declared under para 5 that “[e]veryone has the right to a sufficient quantity of water for his or her basic needs”. Although recommendations of the Committee of Ministers are non-binding, this is the first time such a right is recognised in an official document at European level, a year before the issuance of General Comment No. 15 on the Right to Water. Para 5 further adds that:
International human rights instruments recognise the fundamental right of all human beings to be free from hunger and to an adequate standard of living for themselves and their families.235 It is quite clear that these two requirements include the right to a minimum quantity of water of satisfactory quality from the point of view of health and hygiene.236
The protection against disconnection from the water supply is also recognised by the new Charter,237 then revealing the social component of the new approach to water adopted by the Council of Europe, in accordance with the principles of sustainable development “which brings together two fundamental aspects of society: the need to protect the environment, and the need to improve people’s living conditions”.238 Resolution 183 (2004) of the Congress of Local and Regional Authorities on the Quality and the Quantity of Drinking Water further specified that “water, particularly drinking water, has to be seen as a basic human right”.239 Several subsequent resolutions and recommendations (both nonbinding instruments) issued by the Parliamentary Assembly advocated for the recognition of the right to water and recommended Member States to “ensure access to water and sanitation for all, which should
233 Recommendation on the European Charter on Water Resources Committee of Ministers Rec(2001) at 12.
234 At 12.
235 Universal Declaration of Human Rights, art 25; ICESCR, art 11. 236 Protocol on Water and Health, above n 53, arts 5(k) and 5(l).
237 European Charter on Water Resources, above n 233, at . 238 At .
239 Resolution on the Quality and the Quantity of Drinking Water Congress of Local and Regional Authorities of the Council of Europe Res 183 (2004) at [2(c)].
be considered as a fundamental human right”.240 All EU Member States being also members of the Council of Europe, the adoption of the European Charter on Water Resources within the framework of the European organisation acting for the protection of human rights remedies the absence of institutional recognition of the right to water in the EU legal system, allowing the latter to be considered as part of the foundations of the European Union as enshrined under art 2 TEU.
4. CONCLUSION: RIO+20, A TIMELY REMINDER FOR THE EU TO PROMOTE THE ADOPTION OF
AN INTERNATIONAL CONVENTION ON DRINKING WATER?
Maude Barlow underlined at the 1992 Rio Conference on the Environment and Development that “the key areas of water, climate change, biodiversity and desertification were all targeted for action. Since then, all but water have resulted in a UN Convention.”241 On the road to 2015 towards the achievement of “good ecological status” of EU waters and the realisation of MDG 7.C, States are to meet again at a UN Summit in Rio in June 2012 for the Rio+20 United Nations Conference on Sustainable Development. In the wake of Bolivia’s groundbreaking recognition of the “Rights to Mother Earth” including the right to water,242 the Rio+20 Conference could be a timely moment for the EU to advocate the adoption of an international convention on drinking water within the framework of the conference theme on “a green economy within the context of sustainable development and poverty eradication”.
The European Commission stated in January 2011 that the Conference “will provide a good opportunity for the EU to address resource efficiency with global partners”.243 The European Parliament has already shown more enthusiasm in that matter as it has declared on three occasions the right to water
to be a human right, although using three different wordings.244 In 2003, before the Fourth World Water Forum, it called for the EU and its Member States to:245
... propose, under the auspices of the United Nations, the drafting of an international treaty on water and the management of water resources which recognises the right to access to drinking water.
In 2009, in the context of the Fifth World Water Forum, the European Parliament renewed its wishes to “see the opening of negotiations, under United Nations auspices, on an international treaty recognising the right of access to drinking water”, and called “on the EU Member States and the Union Presidency to take political and diplomatic initiatives in this direction in the UN General Assembly and Human Rights Council”.246
The right to water was not recognised during these conferences but it is interesting to note that the first of 12 “key priorities for water action” to be reviewed at the Sixth World Water Forum in Marseille in March 2012 is to “[g]uarantee access for all and the Right to Water”,247 whereas this was not even an issue on the agenda at the Second World Water Forum held in The Hague in 2000.248 Therefore, one can expect that the positive outcome of this water stakeholders’ conference will impact on the Rio+20 Summit so as to enact, 20 years after the first Conference on Environment and Development, and 47 years after the adoption of the European Water Charter, the link between human rights and sustainable development and in particular the right to water.
In March 2012, States participating at the Sixth World Water Forum expressly referred to UN GA and HRC resolutions and pledged to “accelerate the full implementation of the human rights obligations relating to access to safe and clean drinking water by all
246 At .
247 Sixth World Water Forum “Time for Solutions” (2011) 6th World Water Forum at 10
<www.worldwaterforum6.org>. 248 Barlow, above n 162, at 124–125.
appropriate means”.249 This success was corroborated at Rio where States declared three months later that “water is at the core of sustainable development”,250 and “reaffirm[ed] [their] commitment regarding the human right to drinking water and sanitation, to be progressively realized for our populations”.251
251 At .