The proposed Protocol* is structured as a Second Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) . This would allow taking advantage of an existing Treaty and of competences already entrusted to the Committee on Economic, Social and Cultural Rights.
The Protocol is focused on the human right to water and sanitation. It is composed of 32 Articles, and includes a juridical illustration of the criteria followed in drafting Articles, the references to international law that support them, and substantial innovations to be implemented by the States. The aim is to show that every Article of the Protocol is strictly connected to obligations already adopted by the international community through Conventions or Resolutions; therefore, ratification of the Protocol on the part of the States is simply a matter of political will.
The Protocol is the best appropriate instrument binding the States to provide an autonomous human right to water and sanitation at both levels, substantive and procedural, in terms of:
- The right to drink, to personal hygiene, to food and household uses;
- The right to a minimum quantity and quality of water;
- The right to non-discriminated, physical and economic access to water and sanitation;
- The right to information and participation in decisions relating to water right;
- The right to sue the State for violations concerning the water right;
- The right to water for vulnerable groups and in case of war;
- The right to water through the mechanisms of international solidarity.
THE PROTOCOL CONTENT
The Protocol consolidates some indispensable principles of implementation, such as:
- Priority of the human use of water for life, including personal use and production of food;
- Gratuitousness of a minimum amount of water indispensable to life;
- States responsibility in guaranteeing the human right to water and sanitation;
- Judicial execution of violations before the International Court for Human Rights.
The Protocol also implements a series of principles linked to the human right to water and sanitation, namely by:
- defining water as a public common good
- affirming the mandatory nature of the human right to water
- establishing the criteria of prevention and sustainability in respect of the future generations
- defining the concept of gradual implementation of the law
- introducing the principle of non-discrimination and emphasizing the protection of vulnerable groups
- establishing the priority of human use in relation to nutrition, food, and hygiene
- obliging the States to protect the human right to water
- affirming the right of all to a complete and transparent information and participation
- allowing everybody to report failures by the States, and to denounce violations
INNOVATIONS INTRODUCED BY THE PROTOCOL
The Protocol introduces substantial innovations, namely by:
- Defining water as a public common good, to be used in solidarity (art.1, 17, 18);
- Quantifying the amount of water corresponding to the human right that States need to guarantee (art.2, 3);
- Drawing a pricing policy that discourages overconsumption and waste (art.3, 12);
- Strengthening the right of local communities, as “Collective System”, to determine the kind of water service they want and the way in which it has to be managed (art.1);
- Recognizing the community-based water system management (art.5);
- Quantifying the maximum level of water leakages admitted in the networks (art.6);
- Making violations to water right justiciable (art.15, 16);
- Establishing that anyone can report and inform the Committee for Economic, Social and Cultural Rights, which has the ability to initiate investigation and draw the attention of the UN General Assembly, through the Secretary-General, on States’ failures;
- Defining the progressive character of implementation measures ensuring the right to water (art.7), for States having difficulties, namely in developing countries, but also the obligation to non-regressive policies (art.2);
- Recognizing new phenomena such as water grabbing, water fracking and dams as bad practices to be discouraged and to be checked from the vantage point of their environmental impact (art.9);
READ THE PROTOCOL
*The Protocol has been written after a year of joint work with the Department of International Legal Studies at the University of Milano-Bicocca, under the supervision of Prof. Tullio Scovazzi.