THE HUMAN RIGHTS TO WATER AND SANITATION IN SPHERES OF LIFE BEYOND THE HOUSEHOLD

WITH AN EMPHASIS ON PUBLIC SPACES

R e p o r t o f t h e U N S p e c i a l R a p p o r t e u ro n t h e h u m a n r i g h t s t o s a f e d r i n k i n g

w a t e r a n d s a n i t a t i o n  L é o H e l l e r

A/HRC/42/47

SPACES BEYOND THE HOUSEHOLDAlthough the obligations of States to respect, protect and fulfil the human rights to water and sanitationextend to all persons without discrimination, national policy and practice regarding the progressiverealization of those rights has had a tendency to be limited, wholly or mostly, to the implementation ofprojects aimed at improving access within formal households In most societies, however, many groupsand individuals rely on places beyond the scope of the household to live and enjoy their rights, includingtheir rights to water and sanitation. Different definitions can be adopted for spheres of life beyond the household, particularly when lookingat relevant global gaps in the access to water and sanitation. These spheres may include spaces wherepeople live and that are different conventional households (streets, prisons, dormitories, refugeecamps); places where people work; places where people habitually spend time (public spaces, schools,places of worship); and places where people go occasionally and might spend significant time (stores,public transit hubs, health care facilities, government offices, other public buildings, parks, massgatherings, restaurants, public buildings). All those spheres of life require attention in relation to theenjoyment of the human rights to water and sanitation, but they constitute a heterogeneous landscape,differing substantially in terms of needs and appropriate approaches.

PRISONSWORKPLACES

HOSPITALS AND HEALTH

CARE CENTERSSCHOOLS

STREETS

The WHO/UNICEF JMPreport on healthcarefacilities outlines theneed for access to wateron the premises, as wellas at least one stafftoilet, one sex-separatedtoilet, with facilities formenstrual hygiene, andone accessible toilet for persons with disabilities.

In situations wherepublic spaces areutilised as dwellings, forinstance by people whoare homeless, States arealso obligated to ensurea level of access that isadequate to fulfildomestic needs,including for cleaningproperty and clothesand preparing food.

The StandardMinimum Rules for theTreatment ofPrisoners, also knownas the Mandela Rules,stipulate that “drinkingwater shall be availableto every prisonerwhenever he or sheneeds it” (Rule 22.2).

The Committee onEconomic, Social andCultural Rights has madeclear that the right tojust and favourableconditions of workincludes ensuring thatwater and sanitation areavailable for all workers,and has acknowledgedthat these rights alsoextend to peopleworking informally.

The WHO/UNICEF JMPreport on access towater and sanitation inschools highlighted thatdrinking water shouldbe available and comefrom an improvedsource, whilst sanitationfacilities must be single-sex, functional, private,improved and available.

THE SDG  AND WATERAND SANITATION IN THE

SPHERES OF LIFEBEYOND THEHOUSEHOLD

S

A number of SDG goalsand targets speak to the

need to ensure waterand sanitation services

are available in allrelevant spheres of life

6.1

6.2

Achieve universal and equitable access to safe and affordable drinking water for all

Achieve access to adequate and equitable sanitation and hygiene for all and endopen defecation, paying special attention to the needs of women and girls and thosein vulnerable sitatuations

3.3 End the epidemics of AIDS, tuberculosis, malaria and neglected tropical diseases andcombat hepatitis, water-borne diseases and other communicable diseases

3.9 Substantially reduce the number of deaths and illnesses from hazardous chemicalsand air, water and soil pollution and contamination

4.A Build and upgrade education facilities that are child, disability and gender sensitiveand provide safe, non-violent, inclusive and effective learning environments for all

11.7 Provide universal access to safe, inclusive and accessible, green and public spaces, inparticular for women and children, older persons and persons with disabilities

8.8Protect labour rights and promote safe and secure working environments for allworkers, including migrant workers, in particular women migrants, and those inprecarious employment

10.2Empower and promote the social, economic and political inclusion of all, irrespectiveof age, sex, disability, race, ethnicity, origin, religion or economic or other status.

The Special Rapporteur emphasizes that in order to achieve universal and equitable access to safeand affordable water and sanitation for all, as stated in SDGs 6.1 and 6.2, it is essential to reflectthe importance of the requirements of ‘universal’ and ‘for all’ in policy and practice - and toensure the inclusion of a wide range of spheres beyond the household.

WHY PUBLIC SPACES? Access to water and sanitation in public spaces is an essential element of the enjoyment of the humanrights to water and sanitation for all, and in all spheres of life. However, there is often an evident neglect ofthe provision and promotion of these vital services in such places, where the responsibilities for water andsanitation provision, as well as the consequences of their absence, can be unclear. As a result of that neglect, potential violations of international human rights occur all too frequently anddisproportionately impact members of vulnerable and marginalized groups, such as homeless people,informal workers in public spaces and persons deprived of their liberty. Inadequate access to water andsanitation in places outside formal households can have a negative impact on a multifarious range ofeconomic, social, cultural and political outcomes, affecting health, educational and employment prospects,and access to social and communal opportunities. Each of those is, in and of itself, a potential breach ofhuman rights arising out of the breach of the human rights to water and sanitation.

WHO IS LEFT BEHIND ?TRANSGENDER

PERSONSSTREET WORKERS WOMEN AND GIRLS

PERSONS WITH

DISABILITIESHOMELESS

The physical characteristics of a space, who owns and controls it, and its primary use, are all ways in whichpublic spaces are defined. More nuanced, progressive definitions are also emerging, however. The NewUrban Agenda adopted by the General Assembly in 2016, for example, situates the definition of publicspace in the outputs that these places are capable of achieving, defining them as “multifunctional areas forsocial interaction and inclusion, human health and well-being, economic exchange and cultural expression[…], and that are designed and managed to ensure human development and build peaceful, inclusive andparticipatory societies, as well as to promote living together, connectivity and social inclusion.” The report takes into account elements of the latter definitions that relates to the access to water andsanitation services, under the idea that public spaces are places that facilitate positive social, economic, andcultural effects on individuals, societies and States. However, the Special Rapporteur is of the view that theconcept of public space must also recognise the vital role of these places as spheres where people canexercise their human rights, and where those rights are respected, protected and fulfilled. By reflecting thatelement in definitions of public space, policy decisions on those spaces will be required to acknowledgetheir importance to human rights and, accordingly, proper consideration given in such decisions as to howbest to ensure human rights.

DEFINING PUBLIC SPACES

Numerous studies havehighlighted that women andgirls must spend aroundtwice the amount of timeaccessing public toilets thanmen require, and must alsoaccess sanitation facilitiesmore frequently. Theirspecific needs mean thatthey are disproportionallyimpacted in case of lack ofaccess to water andsanitation.

Studies on the experiencesof transgender and gendernon-conforming personsshow that they arecommonly denied access topublic toilets which matchtheir gender identity,forcing them to use thosethat match the gender theywere assigned at birth. Thisdiscrimination makes themvulnerable to abuse.

The inability to ensurepersonal hygiene due to alack of alternative optionscan lead to negative self-image, and discrimination.Additionally, homelesspeople may becriminalised for findingalternatives to water andsanitation that is lacking inpublic spaces.

Persons with disabilitiesoften struggle to find waterand sanitation facilitieswhich are appropriate tomeet their needs, with thisreality greatly limiting theirability to utilise publicspaces and engage in socialactivities therein, which isparticularly worrying for persons with disabilities.

Inadequate water andsanitation poses a threat tothe health of street workers,often causing them to haveto take time off to recover.In the context of informaland self-employment, beingunable to work inevitablyleads to a complete loss ofearnings over the period ofconvalescence.

LEGISLATIVE FRAMEWORK Although some States have developed andimplemented legislative framework, evidence ofeffective regulation relating to the provision ofwater and sanitation services in public spaces isgenerally lacking and consistency regarding theintroduction of legislative and regulatoryframeworks relating to services in public spacesis troublingly absent. Despite there being some examples of regulatoryframeworks governing access to water andsanitation in public spaces, no State seeminglyyet regulates such access from a human rightsperspective, constructing their regulationsaround the normative content of the rights towater and sanitation Where regulatory regimes fail to provide for theessential elements of access to services in publicspaces, such as compliance monitoring, thoseweaknesses may have an impact on therealization of the human rights to water andsanitation.

ENFORCEABILITYROLES AND

RESPONSIBILITIES ANSWERABILITYStates must have the ability toensure compliance with standardsthrough enforceability, a notionwhich comprises theestablishment of bodies capableof overseeing compliance, as wellas the provision of forums inwhich people may bringchallenges regarding the decisionsor inactions of the actorconcerned and which are capableof satisfying claimants’ right to aneffective remedy (A/73/162, para.59). Without the establishment ofan adequate accountabilityframework, claims to ensurerights are respected, protectedand fulfilled in this contextbecome significantly harder, if notimpossible, to make effectively.

Although responsibility for the provisionof water and sanitation facilities in publicspaces was traditionally held by States,particularly local authorities, in recentyears the delegation of all or part of thisrole to private providers or non-governmental organizations hasincreased. Where the authorities havecomplete control of water and sanitationfacilities in public spaces to private andnon-governmental entities, the ability todetermine who has responsibility fortheir operation can be hampered by theveil of corporate responsibility. Wherethe operation of water and sanitationservices is delegated to a private actor bythe State, it is commonly achievedthrough a contract that may or may notinclude provision for water andsanitation in public spaces.

Water and sanitation providersmust be answerable to thebeneficiaries of their services,and be required to ‘provideexplanations and reasonedjustifications for their actions,inactions and decisions to thepeople affected by them, aswell as the public at large’(A/73/162, para.34). This iscommonly hindered by a failureof those in control of publicspaces to provide mechanismsto allow people to complainabout breaches of their humanrights to water or sanitation, orwhen they only do so inexclusionary and inaccessibleways.

ACCOUNTABILITY FRAMEWORK

HUMAN RIGHTSGAPS IN PUBLIC

SPACES

UN resolutions that haverecognized the human rights to

water and sanitation haveclarified that “the human rightto safe drinking water entitleseveryone […] to have access to[…] water […] in all spheres of

life” 

( A / R E S / 7 2 / 1 2 7 )

A human rights approach to managing water and sanitation in publicspaces ensures comprehensive, inclusive coverage in a way that fullyrespects human rights and dignity, and, crucially, that leaves no onebehind.

COMPLYING WITHTHE HUMAN

RIGHTS TO WATERAND SANITATION IN

PUBLIC SPACES

ACCESSIBILITY

AVAILABILITY

SAFETY/QUALITY

AFFORDABILITY

ACCEPTABILITY,

PRIVACY AND

DIGNITY

When seeking to ensure availability of water and sanitation in public spaces, the precise quantitativefeatures of provision will depend upon the circumstances on the ground (A/HRC/12/24, paras. 70-71),including the type of space being considered and its size, the usage of that space, in terms of the numbersof people present, the demographics of users, and the reasons for their attendance therein, as well as thelength of time people typically remain within a particular space. Having considered these and otherpertinent factors, it is essential that States ensure the construction and maintenance of water andsanitation facilities in those spaces in line with the needs of all users and in sufficient quantities to ensuretheir ease of access.

Ensuring that water and sanitation facilities in public spaces are physically accessible requires that facilitiesin these places are available for use by all people at all times, and that the facilities are suitably locatedwithin the public space and designed so as to can be accessed safely and securely (E/C.12/2002/11, para12(c)(i)). This includes considerations on the period when facilities are open, since many public toilets closeat night, which is problematic for people who rely exclusively on them.

In many States, it is typical for fees to be charged to users in order to allow them access to public toiletsand water points, with these fees often being used to offset the costs of operating and maintaining thefacilities. But many people who rely on public spaces for their access to water and sanitation simply donot have the necessary means to pay such fees, so charging these can prevent the fulfilment of theirhuman rights. Considering their financial vulnerability, the requirement to ensure affordabilityencourages States to either significantly reduce the cost of access fees to levels that are affordable for all,or, ideally, remove access fees for those users altogether and find alternative methods of ensuringsustainability of these facilities.

In public spaces, failure to provide access to water and sanitation that is safe and of sufficient quality can have ahighly detrimental impact on health and hygiene outcomes. Accordingly, states must provide and maintain waterand sanitation facilities in public spaces to proper standards of cleanliness and technical safety. Sanitationamenities must be hygienic, properly cleaned and maintained, and safe for users. Efforts must also be taken tokeep humans, animals and insects away from human excreta, so as to prevent the spread of disease. Waterprovided in public spaces must be safe and free from pathogens and harmful impurities (E/C.12/2002/11, para.12(b)). 

Water and sanitation services must be designed, constructed and maintained in ways that conform to users’personal and cultural needs. Many communities and cultures often have particular and important normsregarding sanitation practices and these can vary between and within cultures. Determining how to provideculturally acceptable water and sanitation facilities in public spaces may require States to engage in meaningfulconsultation with target populations regarding their requirements. Failure to provide public facilities which meetthe cultural needs of users, and which ensure they are provided with privacy and dignity, can minimise usage bygroups who feel unsafe as a result.

In order for States to realize their human rights obligations to ensurewater and sanitation in public spaces, they must provide suchservices in line with the normative content of the rights, namely,availability, accessibility, affordability, safety/quality and acceptability,privacy and dignity.

INTERLINKAGES WITHOTHER HUMAN RIGHTS

PARTICIPATIONCRIMINALIZATIONHEALTH WORK WOMEN ANDGIRLS

Without access to adequatewater and sanitationfacilities in public areas,those who require use ofthese commonly resort topublic urination, defecationand bathing. However, lawsfrequently criminalise theseactivities and thereforethose who engage in them.These laws breach thehuman rights of thosepeople that are forced intobreaking them because ofthe lack of proper water andsanitation facilities.

The link between theright to work and therights to water andsanitation is reflected inthe obligations placedon States pursuant totheir duty to ensure allpeople experience justand favourable workingconditions, which alsoapplies to people whowork on public spaces

The failure of States toensure the adequateprovision of water andsanitation in publicspaces has a particularlynegative, and oftendisproportionate, impacton women and girls, andtheir enjoyment of agreat number of theirhuman rights. A lack ofadequate water andsanitation in publicspaces may infringewomen and girls' right tonon-discrimination.

Participatory rights, suchas freedom of assembly,freedom of movement,the right to take part incultural life and the rightto manifest one’s religion,are often exercised inpublic spaces. Ensuringthe ability of people toexercise these rightsrequires that they be ableto have their rights towater and sanitationfulfilled during the courseof their activities.

Poor accessibility of waterand sanitation in publicspaces can exacerbate pre-existing health problems,for instance where the poordesign of facilities leads topersons with disabilitiesbeing injured when utilisingthem. A lack of water andsanitation facilities in publiccan even affect access tohealthcare, as homelesspersons who are unable towash themselves have beenshown to have been turnedaway from hospitals.

The indivisibility, interdependence and inter-relatedness of human rightsare strongly demonstrated in the context of access to water andsanitation in public spaces.

S t a t e s i n c l u d e w a t e r a n d s a n i t a t i o n i ns p h e r e s o f l i f e b e y o n d t h e h o u s e h o l d ,a n d p a r t i c u l a r l y i n p u b l i c s p a c e s , i n t h e i rp o l i c i e s , p l a n s a n d i m p l e m e n t a t i o ns t r a t e g i e s , w i t h a v i e w t o e n s u r i n g a c c e s sw h i c h c o m p l i e s w i t h t h e n o r m a t i v ec o n t e n t o f t h e h u m a n r i g h t s t o w a t e r a n ds a n i t a t i o n a n d t h e p r i n c i p l e s o f h u m a nr i g h t .

S t a t e s d e l i v e r r e c o m m e n d a t i o n s t o l o c a lg o v e r n m e n t s s e t t i n g o u t h o w t o d e t e r m i n ew h i c h p u b l i c s p a c e s r e q u i r e t h e p r o v i s i o no f w a t e r a n d s a n i t a t i o n s e r v i c e s a n d w h a tl e v e l a n d t y p e o f p r o v i s i o n i s r e q u i r e d .

I n t e r n a t i o n a l m o n i t o r i n g b o d i e sa s s o c i a t e d w i t h t h e S D G s i n c l u d e ab r o a d e r r a n g e o f s p h e r e s o f l i f e b e y o n d t h eh o u s e h o l d i n t h e i r a s s e s s m e n t s a n de s t a b l i s h m e t h o d o l o g i e s t o d e f i n e l e v e l s o fs e r v i c e s i n t h o s e s p a c e s c o m p a t i b l e w i t ht h e S D G s a g e n d a a n d t h e h u m a n r i g h t sf r a m e w o r k .

I n t e r n a t i o n a l h u m a n r i g h t s t r e a t ym e c h a n i s m s a n d b o d i e s , i n c l u d i n g b u t n o tl i m i t e d t o t r e a t y m o n i t o r i n g b o d i e s a n d t h eu n i v e r s a l p e r i o d i c r e v i e w , m u s t i n c l u d ep u b l i c s p a c e s a n d o t h e r r e l e v a n t s p h e r e s o fl i f e b e y o n d t h e h o u s e h o l d i n t h e i ra s s e s s m e n t s a n d m o n i t o r i n g o f t h ee n j o y m e n t o f h u m a n r i g h t s , b o t h i n s p e c i f i cS t a t e s a n d g l o b a l l y .

AS SUCH, THE SPECIAL RAPPORTEUR RECOMMENDS:

In the report, the Special Rapporteur, has highlighted the vital relevance of public spaces, such as parks,plazas, streets, markets and transport hubs, in enabling people to access their human rights to water andsanitation. Such spaces, as zones accessible to all, are lifelines for numerous people and, accordingly, must begiven due recognition in the water and sanitation policies of States. This requires concerted action from nationaland local governments, service providers and regulators in breaking down barriers to access and to enable theprovision of water and sanitation facilities that are available, accessible, affordable, safe, acceptable, and whichensure user's dignity is maintained. It also necessitates that the the roles and responsibilities of all actorsinvolved in provision are clearly identified to determine accountability for human rights violation and abuses.

CONCLUSION

@ S R W a t S a n

@ S R W a t S a n

@ u n s r w a t s a n

s r w a t s a n @ o h c h r . o r g

MR LÉO HELLERUN Special Rapporteur on thehuman rights to safe drinking

water and sanitation