HRBA to Local Water Governance

HUMAN RIGHTS BASED APPROACH TO LOCAL WATER GOVERNANCE

By: LENNY ROSE P. MUCHO, Ed.D

PARTICIPANTS SHOULD BE ABLE TO ARRIVE AT A COMMON UNDERSTANDING OF HUMAN RIGHTS IN GENERAL, AND THE RIGHT TO WATER, IN PARTICULAR, AS THESE RELATE TO LOCAL WATER GOVERNANCE .

Learning Objective

Outline

The Basics of Human Rights HRBA to Local Water Governance

HRBA Framework Actors Premises Principles and Practice

What are Human Rights?

Freedoms and entitlements Legally enforceable claims Norms, rules, limits and checks on state action and action of others

Ends and means to achieve human life with dignity

Where do Human Rights Come From?

Inherent dignity of every person 1987 Philippine Constitution International bill of human rights (UDHR, ICCPR, ICESCR)

Major human rights instruments (DecHRD, CERD, CEDAW, CRC, CAT, CMW, CPD)

What are Characteristics of Human Rights?

• Universal – belong to everyone, everywhere

• Interdependent and Indivisible• Inalienable• Nondiscriminatory and Equal• Some rights are absolute; others may be suspended under strict conditions and for limited times

Actors in Human Rights Based Local Water Governance

Claimholders Responsible exercise of right to water and sanitation Vulnerability Non-homogeneity

Duty Bearers Obligations of Conduct and Result

Water and Dignity

Permeate every aspect of human life Water can determine whether or not we live in dignity:

Impact of water and sanitation , its impact on hunger, poverty, health, education, culture and environment Impact of water and sanitation on

women and children

Different Approaches to Water

Water as Economic Good Value of water to user (maximum

amount user willing to pay) Cost of water (use cost and

opportunity cost) Balance value and cost

Water as Social Good Water to benefit largest number of

people in largest possible way Water is “free”

Different Approaches to Water

Water as Natural Resource Water no longer renewable resource

(predicted to be scarce) Country’s water resources extremely

vulnerable to climactic events Changes in rainfall and temperature Affects water availability

(projected insufficiency to meet present and future demands for water)

Power and Water

Those who have power determine who benefits and who is excluded from water and sanitation services and facilities

Those who have power decide how water and sanitation services and facilities are allocated

Tariffs Service Levels and Modalities Disconnections Quality

Focus on Human Person

Claimholders as central subjects, active participants, owners or local water governance

Full respect for human rights without discrimination

Humane treatment, individualized assistance, best interest of the child, FPIC for indigenous peoples

Attention to most vulnerable: women, children, indigenous peoples, persons with disabilities, older persons, persons living with HIV, persons living in poverty

Legal Basis

Water recognized as human right in international human rights instruments and Philippine laws

Recognition either IMPLICIT or EXPLICIT

Legal Basis- Explicit Recognition

CRC- Convention on the Rights of the Child

CEDAW-Convention on the Elimination of all Forms of Discrimination against Women

CPD- Convention of Persons with Disabilities

Mar de Plata Declaration, 1977 Programme of Action of International Conference on Population and Development, Cairo, 1994

Agenda 21, 1992

Legal Basis- Implicit Recognition

UDHR ICCPR ICESCR CERD Stockholm Declaration, 1972 Alma-Ata Declaration, 1978 UN GA Resolution 35/1980 UN Principles for Older Persons, 1991 Rio Declaration on Environment and Development, 1992 Habitat Agenda, 1996 Rome Declaration on World Food Security, 1996 Johannesburg Plan of Implementation of the World

Summit on Sustainable Development, 2002

Legal Basis – Philippine Law

1987 Constitution - NO explicit recognition; Guarantees right to human dignity; Places ownership, full control and supervision of water resources in the State

Magna Carta of Women - Guarantees right to enjoy, use and manage water resources within communities or ancestral domains

Philippine Clean Water Act of 2004 - Promotes public health and improved quality of life

Ecological Solid Waste Management Act of 2000 - Protects public health and environment

Legal Basis – Philippine Law

National Water Crisis Act of 1995 - Protects health and wellbeing; guarantees rights to adequate food and work

Code on Sanitation in the Philippines - Protects and promotes health; guarantees rights to adequate food, education, work, rest and recreation and healthy environment

Philippine Environment Code - Protects public health; Guarantees right to healthy environment

Local Water District Law - Protects public health and wellbeing; recognizes lack of access to water as critical measure of poor wellbeing; Allows socialized water pricing

Normative Elements

Availability Physical Accessibility Economic Accessibility Information Accessibility Quality Sanitation Acceptability

AVAILABILITY

Sufficient and continuous supply of water for personal and domestic use

Sufficient number of sanitation facilities and associated services within or in immediate vicinity of each household, health or educational institution, public place and workplace

Availability

Philippines – abundant water supply (groundwater reservoirs, major river basins, major lakes, accumulated runoffs from rains) Only 36 % of river systems suitable sources of water supply

Annual renewable water resources rank the Philippines second lowest in per capita water availability in Asia

Water resources unevenly distributed Water availability deficits projected Water availability risked by climate change

Physical Accessibility

Water, water services and facilities within safe physical reach, in immediate vicinity of homes, schools, workplaces and health centers, and physical security guaranteed

Reliable sanitation facilities and services within or immediate vicinity of home, health center, school, public places, workplaces, accessible at all times of day and night, with minimal risks to physical safety; includes special facilities to address differential needs of children, pregnant women, older persons, persons with disabilities and those chronically ill

PHYSICAL ACCESSIBILITY3 Levels of Service

I – Shallow/deep well or developed sprincII – Communal faucet system

III – Piped water directly to household

Different volumes of water collected depending on level of service

Sewer coverage generally limited to urban or urbanized areas

Families responsible for own/individual septic tanks

No information on incidence of violence while accessing water and sanitation

Affordability

Affordable water, water and sanitation facilities and services

Water tariffs and sanitation costs do not threaten or compromise realization of other human rights

Information AccessibilityInformation on water and sanitation issues open to everyone

Information in relevant and easily understandable forms and media

Information Accessibility

Functional literacy rate Women : 86.3% Men : 81.9 %

Basic literacy rate Women : 94.3 % Men : 92.6 %

Awareness of right to safe and clean water – 98.1 % Women : 97.5 % Men : 98.4 %

Filipinos get information from TV and RADIO

Quality

Safe Water Water of acceptable color, odor and taste

Water free from microorganisms and other hazards that threaten health

Sanitation facilities hygienically safe to use Sanitation facilities effective in preventing contact with human excreta

Quality

58 % of groundwater contaminated with coliform

3 main sources of water pollution (domestic, industrial, agricultural)

Air and water pollution and unhygienic practices contribute to 22 % of diseases and 6 % of deaths

Diarrhea leading cause of death

Sanitation Acceptability Sanitation facilities must be culturally acceptable Shared or public sanitation facilities

Flush or pour-flush to street, yard, open sewer, ditch etc.

Open pit (no slab) Hanging toilet Open defecation

Two Fold State Obligations Obligations of CONDUCT

What states should and should not do Specific course of conduct through action or omission

Obligations of RESULT Bring about specific situation, social practice or result

But means to achieve result not prescribed

Obligation of Progressive Realization

Take steps to maximize available resources towards achieving progressively full realization of human rights by all appropriate means

•Steps must be deliberate, concrete and targeted•Steps must be taken expeditiously and effectively•Retrogressive measures prohibited•Progressively extend safe sanitation services, particularly to rural and deprived urban areas, taking into account needs of women and children

Core Obligations

• Non-derogable• Ensure access to minimum essential amount of sufficient and safe water for personal and domestic use

• Ensure non-discriminatory access to water and sanitation

• Ensure physical access to water and sanitation facilities and services

Obligation of Equality

• Non-derogable, primary, mandatory and immediate

• De jure or formal equality• De facto or substantive equality• Notion of gender• Does not mean equal treatment at all times; temporary special measures

• Include and actively involve women• Alleviate disproportionate burden women bear in collecting water

Obligation of Non Discrimination

• Immediate and cross cutting• Discrimination – distinction, exclusion, restriction, preference• Prohibited grounds (race, color, sex, language, religion, political/other opinion, national/social origin, property, birth, disability, age, nationality, marital/family status, sexual orientation, gender identity, health status, residency, economic/social situation, membership in group)


• Ensure equitable allocation of water resources and investments in water

• Provide adequate water in educational institutions

• Address child’s burden of collecting water• Protect access to traditional water sources in rural areas from unlawful encroachment and pollution


• Protect indigenous peoples’ access to water resources on ancestral lands from encroachment and unlawful pollution

• Ensure access to adequate water in evacuation centers, prisons and detention facilities

• Provide older persons, persons with disabilities, victims of natural disasters, persons living in disaster-prone areas, and those living in arid and semi-arid areas, or on small islands with safe and sufficient water

Obligations of International Cooperation and Assistance

Conduct activities with due regard for human rights of peoples of other states

Respect right to water in other countries

Refrain at all times from using water as instrument of political and economic pressure

Take steps to prevent own citizens and companies from violating right to water

Provide adequate water in disaster relief and emergency assistance

Obligation to Respect

Abstain from doing anything that interferes directly or indirectly with right to water

Immediate and Unconditional Refrain from engaging in any practice or activity that denies or limits equal access to adequate water

Refrain from arbitrarily interfering with customary or traditional arrangements for water allocation

Refrain from unlawfully diminishing or polluting water

Obligation to Respect

Refrain from limiting access to, or destroying, water services and infrastructure as a punitive measure

During armed conflicts, emergency situations and natural disasters, protect objects indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation works, protect the natural environment against widespread, long-term and severe damage and ensure that civilians, internees and prisoners have access to adequate water

Obligation to Protect Take steps to prohibit others from violating right to water

Prevent third parties from interfering in any way with enjoyment of right to water

Adopt necessary and effective legislative and other measures to restrain third parties from denying equal access to adequate water, polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems

Obligation to Protect

Where water services are operated or controlled by third parties, prevent third parties from compromising equal, affordable, and physical access to sufficient, safe and acceptable water

Establish effective regulatory system including independent monitoring with genuine public participation and impose penalties for non-compliance.

Obligation to Fulfill

Actively create conditions to fully realize all human rights, including the right to water

Dimensions Facilitate Promote Provide

Obligation to Fulfill (Facilitate)

• Accord sufficient legal and political recognition of right to water

• Ensure water is affordable for everyone

• Facilitate improved and sustainable access to water, particularly in rural and deprived urban areas

• Adopt comprehensive and integrated strategies and programmes to ensure sufficient and safe water for present and future generations

Obligation to Fulfill (Promote)

• Ensure appropriate education concerning hygiene, hygienic use of water, protection of water sources, methods to minimize water wastage and proper sanitation Obligation to Fulfill

(Provide)• Provide water and sanitation whenever individuals or groups are unable to realize their right to water by the means at their disposal for reasons beyond their control

Human Rights Duties of Other Actors

Based on Ruggie Framework and Guiding Principles on Business and Human Rights

Respect Protect Remedy

Human Rights Duties of Other Actors: Respect

Avoid infringing on human rights of others

Address adverse human rights impacts of water and sanitation service supply

Prevent or mitigate adverse human rights impacts directly linked to operations, products or services

Adopt policy commitment to respect human rights

Conduct human rights due diligence

Human Rights Duties of Other Actors: Protect

Support policy instruments that require companies to respect human rights and foster a corporate culture respectful of human rights, prevent corporate abuse

Exercise adequate oversight, regulation and monitoring (LGU-run WSPs)

Promote respect for human rights by business enterprises with which they conduct commercial transactions (LGU)

Human Rights Duties of Other Actors: Remedy

Establish judicial, quasi-judicial and non-judicial grievance mechanisms and appropriate remedies against human rights abuse

Non-judicial grievance mechanisms must be: legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and based on engagement and dialogue

Definition and Scope of Violations

Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights

Violation = Failure to comply with obligations in Covenant

Failure to take step it is required to take

Failure to promptly remove obstacles

Failure to implement right without delay it is required to implement immediately

Definition and Scope of Violations

Not all acts are violations

Need to distinguish INABILITY from UNWILLINGNESS

Acts of Commission and Omission

Acts of Commission (Direct actions) Adoption of retrogressive measures incompatible with core obligations

Formal repeal or suspension of laws, ordinances or policies necessary to continuously enjoy the right to water

Acts of Omission (Failure or omission to take all necessary measures it is required to take) Failure to enforce relevant water and sanitation laws

Violations of Obligation to Respect

Arbitrary or unjustified disconnection or exclusion from water services or facilities

Discriminatory or unaffordable increases in the price of water

Pollution and diminution of water resources affecting human health

Violations of Obligation to Protect

Failure to enact or enforce laws preventing contamination and inequitable extraction of water

Failure to effectively regulate and control water services providers

Failure to protect water distribution systems from interference, damage and destruction

Violations of Obligation to Fulfill Insufficient expenditure or misallocation of public resources resulting in non-enjoyment of the right to water by individuals or groups

Failure to monitor realization of right to water (e.g., failing to identify right to water indicators and benchmarks)

Failure to take measures to reduce inequitable distribution of water facilities and services

Local Water Governance Consistent with Human Rights

General Guidelines: PANTHER Principles

Specific Guidelines: Policy Development and Reform Planning Investment Programming Service Delivery Information Dissemination Regulation and Monitoring Capacity Development

PANTHER Principles

FAO Mnemonic Participation Accountability Nondiscrimination Transparency Human Dignity Empowerment Rule of Law

Participation

1. Is consultation the same as participation?

2. What is desired level of participation?

3. What could possibly prevent people from participating? How can you address this?

Accountability

1. What do you mean by “exercising right to water responsibly?”

2. How can you promote accountability? Give concrete examples

3. What could prevent the exercise of accountability? How can you address this?

Nondiscrimination

1. What inherent disadvantages do claimholders experience?

2. What prejudices, customary or other practices should be addressed?

3. What temporary special measures can be applied?

4. How can you avoid discrimination?

Transparency

1 What information needed?2 In what form, language, media?3 When should information be

released?4 How to remove the “veil of

secrecy?”5 How to avoid corruption?

Human Dignity

1 What do we mean by human dignity?2 How should you treat your

participants?3 How can you promote human rights?4 Safeguards or safety nets?

Empowerment

1 Describe the nature of power relations.

2 What will motivate people to act? What will facilitate informed decisions?

3 What will prevent people from acting? How to address this?

Empowerment

• Power as RELATIONAL Construct• Two Models of Power

• Zero Sum• Non-Zero Sum

• Forms of Power• Covert or Hidden• Overt or Visible• Invisible

• General Approaches to Empowerment• Agency• Structural

Rule of Law

1. What is right of reparation? 2. How to comply with obligations

arising from right of reparation?3. What are barriers or obstacles?4. How to overcome barriers or

obstacles?

Right of Reparation

RIGHT OF Right of every individual to seek redress for a violation of human rights

Obligation to respect human rights includes duties to prevent violations, investigate violations, take appropriate action against violators, and afford remedies to victims

Right of Reparation

Four essential forms:•RESTITUTION: re-establish situation that existed prior to violation•COMPENSATION: last resort for any economically assessable damage resulting from human rights violations•REHABILITATION: legal, medical, psychological, and other care and services, as well as measures to restore the dignity and reputation of victim•SATISFACTION and GUARANTEES of •NON-REPETITION

Applying HRBA to Local Water Governance

• Policy Development• Policy Reform• Planning• Investment Programming• Service Delivery• Information Dissemination• Regulation and Monitoring• Capacity Development

Specific Guidelines: Policy Development

• Review and harmonize Philippine minimum policy standards for local water governance with right to water and sanitation

• Adopt uniform service delivery standards aligned with right to water and sanitation

• Conform disconnection policy with following human rights standard: No one may be deprived of the minimum essential amount of water or of minimum access to basic sanitation services.


• Integrate ability to pay or distinguish between inability and unwillingness to pay in disconnection policy

• Provide procedural protections (notice, reminder, hearing, consultation, etc.) in disconnection policy

• Consider setting grace periods for payment, including accepting late payments without additional penalties

• Adopt fair and affordable tariffs • Integrate to pay and direct and

indirect costs of water and sanitation in water tariff


• Price water to discourage wasteful consumption

• Introduce reduced and more flexible tariffs and payment options

• Consider and adopt other forms of payment (e.g., payment-in-kind in labor or skills provision, phasing-in of connection charges over time) or remove requirements for deposits for connection

• Avoid profiteering and price-fixing• Consider and introduce quota allocation

on credit schemes for women to assist them in toilet construction and water point management


• Provide incentives for claimholders’ responsible water and sanitation practices

• Grant incentives to WSPs to expand coverage

• Incorporate mechanisms to retain trained water and sanitation professionals

• Consider granting subsidies for health and educational institutions to reduce possibility of passing onto patients and students the burden of paying for water and sanitation• Establish cross-subsidies among

industry,agricultural and domestic use, whenever

practicable

Specific Guidelines: Policy Reform

• Formally recognize right to water and sanitation

• Address and remedy discrimination in ordinances, regulations, policies and operating procedures

• Pay attention to each normative element, comply with all obligations and abide by human rights duties and responsibilities

• Immediately repeal or amend ordinances, regulations or policies inconsistent with right to water and sanitation

Specific Guidelines: Policy Reform

• Reform laws and policies relating to water resources, water supply and sanitation to protect and maintain indigenous peoples’ right to water and sanitation

• Harmonize contradictory laws, ordinances, regulations and policies

• Remedy overlapping responsibilities and activities

Specific Guidelines: Planning• Develop plans in accord with

PANTHER Principles; include participatory gender assessment

• Plans must promote the realization of the right to water and sanitation by

• Address all normative elements and highlight corresponding obligations, duties and responsibilities

Specific Guidelines: Planning

Recognize and address challenges to right to water and sanitation (lack of middle or high-income residents able to cross-subsidize extension of water and sanitation services to those living in poverty, loss of economies of scale, mismatch between industrial, agricultural and domestic characters of the municipality, confusion of institutional national and local roles, etc.)

Clarify division of responsibilities between and among duty bearers, claimholders and other actors and establish effective coordination

Specific Guidelines: Planning Define specific, measurable, attainable and realistic objectives consistent with right to water including accountability mechanisms

Adopt specific, measurable, time-bound, short, medium and long-term targets to address each normative element

Use incremental continuum to target claimholders

Base plans on disaggregated and up-to-date indicators

Address impact of climate change and incorporate disaster risk reduction measures

Specific Guidelines: Investment Programming

Investments in water and sanitation should not disproportionately favor expensive water supply services and facilities accessible only to a small, privileged group

Prioritize water and sanitation in budgeting

Carefully consider allocations of resources to ensure that sanitation receives as much priority as water

Set budget priorities in compliance with principle of non-retrogression


Allocate available resources wisely and efficiently according to institutional responsibility

Prioritize allocations to provide and expand access to those without or with limited access to water and sanitation

Prioritize allocations towards construction and maintenance of water and sanitation infrastructure and facilities for families living in poverty


Support construction and start-up costs of small-scale water and sanitation facilities Identify areas at greatest risk of contracting water related diseases and direct resources to those areas

Dedicate an adequate proportion of public resources and capacity to maintain and improve water and sanitation facilities

Incorporate cost and feasibility of repairing damaged water and sanitation infrastructure in budget


Review and analyze public water and sanitation budgets to ensure equality and nondiscrimination

Determine inequitable resource allocations within municipality by looking into approximate public spending per person among different barangays

Conduct right to water and sanitation impact assessments prior to entering into any trade, debt or investment agreement

Design, adopt and implement measures to prevent corruption

Specific Guidelines: Service Delivery

Progressively ensure that everyone has access to water and sanitation services equitably distributed

Pay special attention to those most vulnerable

Prioritize provision of water and sanitation services to schools, hospitals, prisons and refugee camps

Supply at least 20 liters of water per person per day at an affordable cost, but incorporate provisions to increase daily minimum per capita quantity of water to between 50 to 100 liters per person per day at an affordable cost, and consider providing minimum essential quantity of water free of charge


Introduce wider range of available water and sanitation service levels

Establish community based water capture and storage facilities, especially in water-scarce areas

Design water and sanitation facilities, taking into account women’s uses of water and maximizing privacy

Design water and sanitation facilities, taking into consideration differential requirements of children, older persons, those chronically ill, and persons with disabilities


Design water and sanitation facilities at a height reachable by younger children and that do not require great strength or effort to operate

Design water and sanitation facilities at a suitable distance from water sources to prevent leeching into groundwater

Design sanitation facilities no farther than 50 meters from the home to serve a maximum of 20 persons, used according to family group or segregated by sex

Reduce distance to water points and toilets


Provide lighting and electricity along the paths to and fro water supply and sanitation facilities

Consider security and safety concerns when selecting locations for water supply and sanitation facilities

Where incidence of crime is high, increase police/tanod visibility

Control pollution of water resources

Consider, adopt and implement wastewater treatment options and low-cost technology


Include drainage channels or sewerage pipes to transport wastewater away from the community to places where it can be treated or disposed to avoid threats to health and damage to the ecosystem

Upgrade water supply facilities Immediately repair any damage to water and sanitation facilities

Specific Guidelines: Information Dissemination

Provide full and timely information in the language known to and used by claimholders on: Level and modalities of water and sanitation services and facilities

Nature, eligibility and scope of subsidies

Nature and scope of incentives Water quality issues Means to address water pollution Water conservation techniques Safe handling of water for domestic uses

Specific Guidelines: Information Dissemination

Provide full and timely information in the language known to and used by claimholders on: Adequate sewerage, drainage and hygiene promotion

Stress benefits derived from water from high-quality sources and from adequate sanitation facilities

Require all public and private WSPs to widely disseminate accurate, complete and timely information (including financial information) about their operations, services and facilities

Specific Guidelines: Regulation and Monitoring

Effective and functional regulatory system for private and public water and sanitation service providers

Refrain, and ensure that private persons and organizations refrain, from interfering with right to water and sanitation

Require private and cooperative water and sanitation service providers to:

Operate in a manner consistent with the right to water and sanitation;



Undertake human rights due diligence; Act in a socially responsible manner; Immediately inform government and the

public of any significant risks to the water supply;

Comply with service delivery standards and follow all applicable water and sanitation policies, regulations, targets and benchmarks;



Ensure environmentally sound waste disposal by providing proper connections for the disposal of solid waste and transporting wastewater and solid waste to locations away from where the communities live.

Regulate and monitor Service delivery performance

and efficiency,


Regulate and monitor Charges and tariffs by water and

sanitation utilities and small-scale service facilities, water extraction activities,

Water quality, Wastewater and solid waste

treatment and disposal, Water wastage, Water pollution


Regulatory and monitoring activities:

Conduct full background check on private WSPs

Ensure “no one whose access to water and sanitation may be legally curtailed after the appropriate procedures have been followed [is] deprived of the minimum essential amount of water or of minimum access to basic sanitation services”

Implement mechanisms if private WSP reneges on or abandons water service provision contract


Regulatory and monitoring activities: Establish transparent licensing (permitting) systems to avoid excess water withdrawals

Ensure that private sector enterprises responsibly dispose of, and where necessary, treat wastewater and other industrial by-products

Require owners and operators of health and educational institutions and other business establishments to ensure accessible, continuous and reliable water and sanitation facilities at their institutions


Regulatory and monitoring activities:

Support intra-household and intra-community water re-use or recycling

Support sustainable agricultural practices around water catchment areas

Conduct periodic water sampling and tests from water collected in households randomly selected

Minimize contamination of water resources

Reduce water wastage Resolve all water-related conflicts with fairness and justice



Ensure environmentally sound waste disposal by providing proper connections for the disposal of solid waste and transporting wastewater and solid waste to locations away from where the communities live.

Regulate and monitor Service delivery performance and

efficiency,


Regulatory and monitoring activities: Establish transparent licensing (permitting) systems to avoid excess water withdrawals

Ensure that private sector enterprises responsibly dispose of, and where necessary, treat wastewater and other industrial by-products

Require owners and operators of health and educational institutions and other business establishments to ensure accessible, continuous and reliable water and sanitation facilities at their institutions

Specific Guidelines: Capacity Development

Conduct human rights training and education, particularly on the right to water and sanitation for claimholders, duty bearers and other actors

Enhance capabilities of local water governance actors to: focus on human person; recognize, understand and address critical water and sanitation issues; and pursue rules, systems, processes and social arrangements that guarantee right to water and sanitation

Integrate PANTHER principles in all capacity development activities

LENNY ROSE P. MUCHO

Date post:	07-May-2015
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HRBA to Local Water Governance

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