COVID-19 Symposium: COVID-19 and the Human Right to Water and Sanitation

[Dina Lupin Townsend is a Research Consultant and Visiting Researcher at the University of Witwatersrand, Johannesburg. She specialises in environmental law and human rights.] 

Information and advice on COVID-19 has been changing at an alarming rate, but one message has remained consistent for weeks: wash your hands. The World Health Organization (WHO) has stated that ‘frequent and proper hand hygiene is one of the most important measures that can be used to prevent infection with the COVID-19 virus’. States and international bodies have tried to keep the messaging on this point extremely clear and concise, producing illustrated guides and even songs to get the message across.

But as the number of infections in Africa and Asia grows, the messaging on handwashing becomes more complex. There is nothing simple about washing your hands when you have extremely limited access to clean water. In 2019, the WHO reported that 785 million people lack even a basic drinking-water service. Globally, at least 2 billion people use a drinking water source contaminated with faeces. Three billion peoples have no access to hand-washing facilities at home. A particularly terrifying statistic is that over 20% of health care facilities in least developed countries have no water service, no sanitation service and no waste management service. In these circumstances, requiring even medical professionals to wash their hands with the frequency needed becomes challenging. A lack of access to water and sanitation is not only a problem for least developed countries. In Europe over 16 million people still lack access to basic drinking-water and more than 31 million people are in need of basic sanitation. In addition, access to water and sanitation remains an enormous problem in prisons and in refugee camps around the world.

While limited access to clean water is a life-threatening problem for millions of people on a day to day basis, in the midst of the global COVID-19 pandemic, many may find themselves stuck in a vicious cycle. People with limited access to water and safe sanitation services are at a much higher risk of COVID-19 infection. Infection leads to limited mobility as people become sick or are forced into quarantine, risking greater limitations on their access to water. 

This pandemic has highlighted what we have long known – realizing the human right to water and sanitation is critical to preventing the contraction and spread of life-threatening disease. However, realizing this right for all is a task beset with problems, made worse by a lack of global acceptance of the right, climate change, and poverty. Here I look at the status of the right in international law and the importance but complexity of realizing the right in a time of COVID-19 and climate change in an unequal, interconnected world.

The status of the right to water and sanitation in international law

The status and nature of the right to water and sanitation in international law is unclear and contested. The right was not included in the 1948 Universal Declaration of Human Rights, nor did it appear in either of the 1966 Covenants. From the 1970s onwards, however, states increasingly recognized the importance of access to water and reference to it began to appear in conventions on the rights of women and children.

Recognition of non-binding rights to water and sanitation in international law happened only relatively recently. In 2010, the UN General Assembly recognized the human right to safe drinking water, while the right to sanitation was recognized as a distinct right by the General Assembly in 2015. The right to water and sanitation are also recognised in the 6^th Sustainable Development Goal (2015) which calls on states to ensure the ‘availability and sustainable management of water and sanitation for all’ by 2030. 

The OHCHR has, since 2002, argued that rights to water and sanitation are implied by Articles 11 and 12 of the Covenant on Economic, Social and Cultural Rights. Article 11 guarantees the right ‘to an adequate standard of living … including adequate food, clothing and housing, and to the continuous improvement of living conditions’. Article 12 provides for the right to the highest attainable standard of health.

Connecting the right to water to Articles 11 and 12 highlights the fact that a right to water is a right to access an adequate quantity and quality of water for a wide range of purposes. Ensuring the right to water requires states to take decisions about allocating an often-limited resource among a vast array of consumers, including agriculture, industry, and the energy sector. Furthermore, the right to water is a right to access water which demands sometimes major investments in infrastructure, transportation and water treatment plants. This complexity and expense might explain why currently only 26 states have recognized the right in their constitutions.

The right to water and climate change in a time of COVID-19

Several commentators have linked COVID-19 to unsustainable environmental practices. The Chinese government has claimed that COVID-19 originated in a meat market in Wuhan, but experts have suggested that human encroachment into and destruction of forests and other natural habitats has pushed us into closer contact with animals, who are themselves pushed into closer confines, increasing the likelihood of inter-species transmission of diseases.

It has also been noted that the drivers of a global pandemic like COVID-19 are the same drivers of climate change – rampant destruction of biodiversity, dense, energy-intensive urban centers, rapid growth in international airline travel and transportation. Both COVID-19 and climate change are a product of our globalised, industry-heavy and unequal world.

Some have pointed to a positive connection between COVID-19 and climate change, seeing the slowing down of economies, the limiting of international travel and the closing of factories as an opportunity to transform some of our unsustainable and GHG-emissions intensive economic practices. However, the connection between climate change and global pandemics is much darker when viewed from an access to water perspective.

Climate change is recognized as a major obstacle to the realization of the right to water. It already affects the accessibility of water and sanitation due to an increase in floods, droughts, rising sea levels and changes in temperature extremes. Even areas that are currently water rich will likely face water shortages in the future. The UK’s National Audit Office, for example, recently predicted that parts of England will run out of water in the next twenty years due to increased droughts as a result of climate change.

An important question is what impact this pandemic will have on the development of the international law on climate change. Many see the adoption of the Paris Agreement in 2016 as a significant step forward, creating both binding and voluntary measures aimed at limiting the global temperature increase to 1.5 degrees Celsius. However, much work is still needed in the development of standards and rules under the Paris Agreement. The COVID-19 crisis, as well as post-crisis efforts to rebuild economies and the US’s withdrawal from the Paris Agreements this year, may mean many states are distracted or discouraged and this may hamper compliance and the further development of global climate law.

The right to water and poverty in a time of COVID-19

Recent research has demonstrated how various measures related to the regulation of water have resulted in discriminatory water allocation practices that hamper the realisation of rights to water for the poor and marginalized. Privatisation of water resources and distribution has raised costs and reduced access for indigenous and traditional communities and for those living in poverty.

COVID-19 has highlighted the connection between accessing water and exposure to illness for people living in conditions of poverty. In South Africa, for example, people living in informal settlements often share a small number of water taps and toilets with hundreds of others. Collecting water and using toilets means standing for hours, often in crowded conditions. Not only is social distancing impossible in these circumstances, but few are able to collect enough water for cooking, washing clothing, and regular hand washing. Since water collection is often the task of women, women are particularly vulnerable to infection.

Climate change exacerbates existing inequalities in water access. While water scarcity will affect a growing number of people all over the world, it will have a disproportionately negative effect on the poor. Scarce water resources will result in increased costs associated with accessing water, making water more expensive for those with access to piped water but also reducing existing water sources, meaning those who travel to collect water will have to travel further, increasing tensions over water resources.

In the current COVID-19 crisis, those travelling to collect water may find themselves in conflict with police and other authorities enforcing state lockdown measures. Some states have adopted criminal provisions and fines to enforce their lockdowns, and this, combined with the public fear of contracting the virus, may mean people increasingly resort to using contaminated water sources or open defecation. 

Taking action now

Overcoming these barriers with the urgency that COVID-19 demands is no simple task. What is clear, however, is that realizing the right to water and sanitation needs to be a key component of states’ COVID-19 response plans. International agencies have made a number of important recommendations, including that states stop all water service cut-offs for reasons of non-payment and provide water free of cost for the duration of the crisis. Another crucial measure will be the creation of additional water and sanitation facilities, not only in informal settlements but also in high density areas such as markets and public transport hubs.

From the perspective of international law, hopefully this crisis will mean greater recognition of the right to water and sanitation by states. In our interconnected world, the right to water is not only a sovereign matter, but an international concern. Orly Stern has argued that ‘[i]n the absence of vaccines and treatment, … this crisis will only be as over, as it is in its worst-hit places. Where pockets of outbreak remain, no one will be safe’. The realisation of the right to water in one country is critical to the realisation of the rights to life and health of all people all over the world.