Water and Sanitation: Key Rights for Ensuring Girls' Education

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Water and Sanitation: Key Rights for Ensuring Girls’

Education

‘With the right facilities, girls can gain an education and become leaders of tomorrow.’ (WaterAid)

Master´s Thesis

Written by Salima Guettache

LL.M. student in International and European Law: Public International Law Student number: 10004701

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INTRODUCTION

The United Nations Millennium Development Goal number 7 set the target to halve the population without access to safe drinking water and basic sanitation by 2015. By 2010 the target was already met.1 However, 748 million people still lack access to drinking water sources, and more than one third of the world population does not have access to adequate sanitation facilities.2

The lack of water and sanitation mostly affects women, and in particular girls. A lack of access to water and sanitation does not only have implications on health and security issues, but also affects the enjoyment of education.3 Statistics show that at the age of menstruation, an average of 155 girls in every African village drop out of school, due to a lack of sanitary facilities and sanitary towels.4 The NGO Wateraid therefore argues that providing access to safe drinking water and sanitation in schools is essential to the enjoyment of the right to education for girls.5 Likewise, according to the World Health Organization, improvements on sanitation will boost school attendance of girls.6

The Supreme Court of India has recognized that sanitation is an essential component of the right to education. In 2012 the Supreme Court held that the lack of toilet facilities in schools violates the right to free and compulsory education as laid down in article 21A of the Indian constitution. The Court based its decision on empirical studies which found that parents do not send their kids – in particular their girls – to school, when schools lack sex-segregated toilets.7

While the Supreme Court of India based its decision solely on national law, and made no reference to international law, this thesis will research the relationship between water, sanitation and primary education for girls in international human rights law. This thesis will research the following question: to what extent are the human rights to water and

1_{UN Millennium Development Goals ‘Goal 7: Target 7C’ http://www.un.org/millenniumgoals/environ.shtml.} 2

WHO ‘Investing in Water and Sanitation: Increasing Access, Reducing Inequalities’ [2014] UN Water Global Analysis and Assessment of Sanitation and Drinking-Water GLAAS Report, iv.

3_{B Mengistu ‘Empowering Women and Girls: How Water, Sanitation and Hygiene Deliver Gender Equality’}

[2012] WaterAid.

4

Watoto ‘Keep a Girl in School’ http://www.watoto.com/about-us/news-updates/keep-a-girl-in-school (2013).

5_{B Mengistu ‘Her Right to Education: How Water, Sanitation and Hygiene in Schools Determines Access to}

Education for Girls’ [2013] WaterAid, 6.

6_{WHO ‘Sanitation: Fact Sheet N°392’ http://www.who.int/mediacentre/factsheets/fs392/en/ (July 2014).} 7_{Environmental & Consumer v Delhi Administration [2012] INSC 584, para 4.}

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sanitation linked to the effective enjoyment of the right to primary education for girls, in relation to girls’ menstrual needs in school?

This thesis will focus on the right to primary education, because the right to primary education is a compulsory right, and because many girls start menstruating when they go to primary school.

The first chapter will start by examining the right to primary education for girls and discuss why access to water and sanitation is required for the effective enjoyment of this right. Subsequently, this thesis will argue that providing access to water and sanitation requires the realization of the rights to water and sanitation. This thesis will do so by examining the normative content of the rights to water and sanitation as well as the obligations under these rights. While the realization of the right to water is essential for the right to education, the right to sanitation is particularly important for the sanitary needs of girls, because of specific features of sanitation. However, the right to sanitation is often treated as a co-right with water which decreases its importance, because there is more legal and political support for the right to water. While taking into account the difficulties of realizing a human right to sanitation, the final chapter will conclude that sanitation should be considered an independent human right so as to ensure that girls can effectively enjoy their right to education.

In its research, this thesis will analyse several human rights treaties, namely the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and in particular the International Covenant on Economic, Social and Cultural Rights. In addition, this thesis will examine the work of different UN treaty bodies, UN independent experts, the General Assembly, the Human Rights Council and academic literature. This research will focus on treaty interpretation, in accordance with article 31 of the Vienna Convention on the Law of Treaties.8

8_{Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155}

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A. PRELIMINARY REMARKS: THE NATURE OF ECONOMIC,

SOCIAL AND CULTURAL RIGHTS

Whereas this thesis will dedicate most of its analysis to rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), it is of importance to highlight certain aspects specific to economic, social and cultural rights and their correlated State obligations.

1. Progressive Achievement of Economic, Social and Cultural Rights

Article 2, paragraph 1, of the ICESCR stipulates that each State Party must ‘take steps… to the maximum of its available resources’ to achieve ‘progressively the full realization’ of the rights enshrined in the ICESCR. States parties should do so ‘by all appropriate means, including particularly the adoption of legislative measures’.9

According to the Committee on Economic, Social and Cultural Rights (CESCR), article 2 has a dynamic relationship with all other economic, social and cultural rights and thus applies to all of them.10 In drafting the ICESCR, the drafters recognized that it would be impossible for all States parties to achieve the full realization of all rights within a short period of time. The supporters of the notion of progressive achievement therefore argued that including this notion would reflect the severe economic realities that many countries face.11

The CESCR has also opined that the idea of progressive achievement reflects the difficulties that States parties may have in realizing the social, economic and cultural rights. However, the CESCR has also emphasized that the idea of progressive achievement refers to the raison d’être of the ICESCR, which is the full realization of economic, social and cultural rights. 12

9_{International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into}

force 3 January 1976) 993 UNTS 3 (ICESCR).

10

UN Committee on Economic, Social and Cultural Rights ‘General Comment 3: The Nature of States Parties Obligations’ (14 December 1990) UN Doc E/1991/23, paras 1-2.

11_{P Alston and G Quinn ‘The Nature and Scope of States’ Parties Obligations under the International Covenant}

on Economic, Social and Cultural Rights’ (1987) 9(2) Human Rights Quarterly 156, 173-175.

12

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In practice, progressive achievement is inseparable from the maximum available resources that States parties have. Article 2 recognizes that States parties might lack resources for the full realization of economic, social and cultural rights. However, while States may determine what resources they make available for the progressive realization of the rights, their discretion cannot have the effect of nullifying their obligations under the ICESCR.13

Although the largest part of the rights may be realized progressively, the ICESCR also includes obligations which are of immediate effect. The obligation to guarantee that all rights will be exercised without discrimination and the obligation to take steps towards full realization of the economic, social and cultural rights within a short time after its entry into force are obligations of immediate effect.14

In addition, the CESCR has identified minimum core obligations, which are obligations that States parties must always meet. These core obligations ensure that the minimum essential level of each of the ICESCR rights is realized.15 Furthermore, core obligations are non-derogable. This means that even in times of conflict, emergency and natural disasters, States must continue to fulfil them.16

2. The Prohibition of Discrimination

Article 2, paragraph 2, of the ICESCR further stipulates that ‘States must undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to … sex.’17

The CESCR has made a distinction between formal (de jure) discrimination and substantive (de facto) discrimination. While de jure discrimination refers to legal documents and policies that discriminate against people, de facto discrimination covers factors beyond the legal and political framework. For instance, in practice certain groups of people or individuals may

13_{P Alston and G Quinn (n 11) 177-180.}

14_{UN Committee on Economic, Social and Cultural Rights (n 10) paras 1-2.} 15

ibid para 10.

16_{UN Committee on Economic, Social and Cultural Rights ‘Substantive Issues Arising in the Implementation of}

the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’ (10 May 2001) UN Doc E/C.12/2001/10, para 9 and 18.

17

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suffer from discrimination due to historical, social or cultural prejudices. States have the obligation to eliminate both forms of discrimination.18

Furthermore, the ICESCR prohibits both direct and indirect discrimination. Direct discrimination occurs when legal documents or policies prohibit certain groups of people or individuals from exercising certain rights (for example laws or policies that prohibit pregnant women from working). Indirect discrimination usually stems from laws, policies or practices which appear to be neutral, but which have discriminatory effects in practice. For example, requiring birth certificate registration at schools may prevent minorities who do not possess birth certificates from attending school.19

B. THE RIGHT TO PRIMARY EDUCATION FOR GIRLS

Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.20

The right to education as enshrined in the Universal Declaration of Human Rights has been broadly recognized and further developed through the adoption of numerous international human rights treaties. This chapter will discuss the right to primary education for girls as enshrined in international human rights treaties and the interpretations given by UN human rights treaty bodies21 and UN independent experts. This chapter will particularly analyse the extent to which the effective enjoyment of the right to education for girls requires access to water and sanitation.

18_{UN Committee on Economic, Social and Cultural Rights ‘General Comment 20: Non-Discrimination in}

Economic, Social and Cultural Rights’ (2 July 2009) UN Doc E/C.12/GC/20, paras 7-8.

19

ibid para 10.

20_{Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III) (UDHR), art}

26(2).

21_{The Committee on the Elimination of Discrimination against Women has not issued any substantive general}

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1. The Right to Primary Education in International Human Rights

Treaties

The right to primary education is enshrined in articles 13 and 14 of the ICESCR. Article 13 (2) (a) stipulates that ‘primary education shall be compulsory and available free to all.’ In addition, article 14 stipulates that State Parties that have not been able to provide free and compulsory primary education for everyone, must – within two years – ‘work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.’22

The right to primary education is furthermore laid down in articles 28 and 29 of the Convention on the Rights of the Child (CRC). Article 28(a) stipulates that States parties must ‘make primary education compulsory and available free to all.’ Article 28(e) adds that States parties must ‘take measures to encourage regular attendance at schools and the reduction of drop-out rates.’23

The right to education is also enshrined in article 10 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Pursuant to article 10 ‘States parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education …’. Article 10(f) furthermore adds that States shall take measures to ensure ‘the reduction of female student drop-out rates …’.24

These three human rights treaties thus stress the importance of the right to primary education. In addition, the CRC underscores the problem of pupil dropouts within education, while the CEDAW emphasizes dropouts among female students.

22

International Covenant on Economic, Social and Cultural Rights (n 9).

23_{Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)}

1577 UNTS 3 (CRC).

24_{Convention on the Elimination of All forms of Discrimination against Women (adopted 18 December 1979,}

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2. The Normative Content of and the State Obligations under the Right

to Primary Education

The CESCR has adopted two General Comments on the right to education25, in which it has identified the normative content of and the State obligations under the right to education.

a. Normative content

According to the CESCR, primary education consists of four essential components: availability, accessibility, acceptability and adaptability. Firstly, availability means that educational institutions and programmes should exist in sufficient numbers and should function. In order to function, schools do not only require teachers, buildings and teaching materials, but also sanitation facilities for boys and girls as well as safe drinking water.26 The CESCR thus acknowledges that access to water and sanitation in schools is required to ensure the availability of education. It furthermore recognizes the importance of sex-segregated toilets in order to ensure access to schools.

Secondly, the component of accessibility, and in particular physical accessibility, means that schools must be located at a safe distance or must be accessible via technological means. Furthermore, education must be economically accessible and therefore primary education must be free, whereas higher education must be affordable. Moreover, education should be accessible to everyone without discrimination.27

The Committee on the Rights of the Child has addressed the issue of discrimination against girls in education. In the General Comment on the right to education, the Committee on the Rights of the Child has declared that every child should have equal opportunities within education. Practices that are unsafe and female unfriendly can negatively impact educational opportunities for girls.28

25

UN Committee on Economic, Social and Cultural Rights ‘General Comment 13: The Right to Education’ (8 December 1999) UN Doc E/C.12/1999/10 and UN Committee on Economic, Social and Cultural Rights ‘General Comment 11: Plans of Action for Primary Education’ (10 May 1999) UN Doc E/C.12/1999/4.

26

UN Committee on Economic, Social and Cultural Rights ‘General Comment 13: The Right to Education’ (8 December 1999) UN Doc E/C.12/1999/10, paras 6(a) and 8.

27_{Ibid paras 6(b) and 8.}

28_{UN Committee on the Rights of the Child ‘General Comment 1: The Aims of Education’ (17 April 2001) UN}

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Because of the lack of separate toilets in schools, educational opportunities for girls are affected. The lack of sex-segregated toilets in educational institutions is thus female unfriendly and discriminates against girls.

Furthermore, the third component of the right to primary education is acceptability, which encompasses quality education and relevant and culturally appropriate education. 29 Finally, the component of adaptability concerns the importance of flexibility within education in order to adapt to changing needs of societies and communities.30

b. State obligations

The importance of primary education is also shown through the fact that the provision of free and compulsory primary education constitutes an immediate obligation for States parties.31 Furthermore, States have the obligation to respect, protect and fulfil the right to primary education, including the essential components of the right to education (availability, accessibility, acceptability and adaptability).32

Firstly, the obligation to respect requires States to refrain from preventing or impeding the enjoyment of the right to education. Secondly, pursuant to the obligation to protect, States parties must take measures in order to prevent third parties from interfering with the enjoyment of the right to education. Thirdly, as regards the obligation to fulfil, States must facilitate the right to education, by assisting people and communities with the enjoyment of the right to education through the adoption of positive measures. Fourthly, when individuals or groups are unable to realize the right to education by themselves, for reasons beyond their control, the obligation to fulfil requires States to provide the right to education. Under most circumstances States will be required to provide education.33

The obligation to fulfil (provide) could be relevant for the right to primary education for girls, since one could argue that girls are unable to exercise their right to primary education for reasons beyond their control (menstruation and a lack of separate toilets in schools). States

29

UN Committee on Economic, Social and Cultural Rights (n 26) paras 6(c) and 8.

30_{ibid paras 6(d) and 8.} 31_{ibid para 51.}

32_{ibid paras 46 and 50.} 33

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should therefore be required to provide educational institutions with sex-segregated toilets, in order to ensure that girls will be able to exercise the right to primary education.

This argument is supported by the Committee on the Rights of the Child, which has held that States parties should take practical measures, such as providing toilets and sanitary towels, to keep girls in school during their menstrual periods.34

Although the CESCR recognized the importance of access to water and separate toilets for ensuring the availability of the right to education, it refrained from relating the normative content and State obligations to the specific sanitary and menstrual needs of girls in school.

3. Access to Water and Sanitation: Required for the Effective Enjoyment

of the Right to Primary Education for Girls

However, the CESCR has not ignored the message of the Committee on the Rights of the Child. In 2004 the CESCR started expressing its concern over high dropout rates in schools among teenage girls.35 Yet, it took the CESCR years to finally recognize that the dropout rate of girls in primary schools is related to a lack of access to sanitation.

In the Concluding Observations on Afghanistan, the CESCR recommended Afghanistan to ´take adequate steps to encourage the school enrolment of girls, including by providing facilities in schools (for example separate toilets for girls)´ in order to comply with the General Comments on the right to education.36 In subsequent Concluding Observations, the CESCR continued to request States to improve access to water and sanitation facilities in schools, however without specifically referring to the issue of female dropouts.37

34_{UN Committee on the Rights of the Child ‘Statement on Girls’ Education: Committee on the Rights of the}

Child Stresses Importance of Practical Help’ (11 October 2013). According to the Committee on the Rights of the Child these measures are not costly, and therefore they are not a matter of resources, but a matter of priority.

35

UN Committee on Economic, Social and Cultural Rights ‘Concluding Observations: Chile’ (1December 2004) UN Doc E/C.12/1/Add.105, paras 29 and 59.

36_{UN Committee on Economic, Social and Cultural Rights ‘Concluding Observations: Afghanistan’ (7 June}

2010) UN Doc E/C.12/AFG/CO/2-4, para 43.

37_{eg UN Committee on Economic, Social and Cultural Rights ‘Concluding Observations: United Republic of}

Tanzania’ (13 December 2012) UN Doc E/C.12/TZA/CO/1-3, para 26. The CESCR recommended Tanzania to ´take steps to improve the physical environment of schools, including ensuring appropriate water and sanitation facilities, in particular in rural areas.´

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Yet recently the CESCR issued Concluding Observations in which it requested Paraguay to improve the quality and infrastructure of schools by providing separate toilets for boys and girls, in order to guarantee the right to education.38

In addition to the recommendations to States Parties by the CESCR, the Special Rapporteur on the Right to Education has examined the issue of girls dropping out of school more extensively.39

In her first preliminary report, Special Rapporteur Katarina Tomasevski held that education suffers from a lack of water and sanitation.40 Her Successor Vernor Muñoz Villalobos addressed this issue with more detail and recognized that the lack of sanitation in schools deters girls from attending school, especially during their menstrual periods. In line with the CESCR, the Special Rapporteur noted that the feature of availability of the right to education includes the establishment of ‘separate, private, safe sanitation services for girls.’ In addition he held that States should make education available to girls by providing them with sanitary towels.41 The new and current Special Rapporteur on the Right to Education, Kishore Singh, reaffirmed that the lack of separate toilets in schools constitutes an obstacle to access to education for girls.42 In addition he has mentioned India as an exemplary country, since Indian education laws require schools to establish separate toilets for boys and girls.43

The CESCR and the Special Rapporteur thus recognize that access to sanitation is important for the effective enjoyment of the right to primary education for girls, since access to sanitation reflects menstrual and sanitary needs of girls in school. However, the CESCR and the Special Rapporteur have not concluded the same on access to water. So while access to water is relevant for the right to primary education in general, access to sanitation is specifically relevant for the effective enjoyment of primary education for girls.

38

UN Committee on Economic, Social and Cultural Rights ‘Concluding Observations: Paraguay’ (18 March 2015) UN Doc E/C.12/PRY/CO/4, para 30.

39_{UN Commission on Human Rights Res 33 (17 April 1998) UN Doc E/CN.4/RES/1998/33 paras 5(c) and 6(a)}

(iii). The Mandate of the Special Rapporteur provides that the Special Rapporteur must give priority to girls and consider their specific needs within education

40

UN Commission on Human Rights ‘Preliminary Report by Special Rapporteur on Education’ (13 January 1999) UN Doc CHR E/CN.4/1999/49, para 67.

41_{UN Commission on Human Rights ‘Report by Special Rapporteur on Education: Girls’ Right to Education’ (8}

February 2006) UN Doc E/CN.4/2006/45, paras 129 and 132.

42_{UN Human Rights Council ‘Report by Special Rapporteur on Education: Financing Education and Update on}

Education in Emergencies’ (3 August 2011) UN Doc A/66/269, para 79.

43_{UN Human Rights Council ‘Report by Special Rapporteur on Education:}_{Normative Action for Quality}

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This chapter therefore concludes with stating that the right to primary education requires access to water and sanitation (in particular separate toilet facilities for boys and girls) in order to ensure its availability. Furthermore, access to sanitation is particularly important for ensuring the effective enjoyment of the right to education for girls, since sanitation takes into account menstrual and sanitary needs of girls.

Whereas this chapter has merely discussed access to water and sanitation, the following chapters will examine the human rights to water and sanitation and the extent to which their full realization is linked to the effective enjoyment of the human right to primary education for girls.

C. THE RIGHT TO WATER AND SANITATION IN

INTERNATIONAL HUMAN RIGHTS LAW

1. The Right to Water and Sanitation as Enshrined in International

Human Rights Treaties

a. The CRC and the CEDAW

The right to water and sanitation as such cannot be found in any international human rights treaty. However, both the CRC and the CEDAW require States parties to provide access to water and sanitation under certain circumstances.

Article 24, paragraph 1, of the CRC imposes the obligation upon States parties to ‘recognize the right of the child to the enjoyment of the highest attainable standard of health …’. Paragraph 2(c) further stipulates that ‘States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures … to combat disease and malnutrition, including within the framework of primary health care, through, inter alia … the provision of … clean drinking-water…’.

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Furthermore, States must take measures to ‘ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of … environmental sanitation …’.44

States thus have the obligation under the CRC to provide clean drinking water. However, this obligation merely exists in relation to combatting disease and malnutrition. And as to sanitation, Sates are only obliged to provide information on environmental sanitation. Moreover, the Committee on the Rights of the Child has interpreted access to clean drinking water and sanitation only in relation to health issues.45

Likewise, the CEDAW explicitly addresses water and sanitation. Article 14, paragraph 2(h), stipulates that States are required to take measures to ensure that women in rural areas ‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply’.46

While this provision acknowledges the importance of water supply and sanitation, it only relates these issues to the living conditions of rural women.47

Therefore, the abovementioned provisions of the CRC and the CEDAW do not amount to general obligations regarding water and sanitation, since water and sanitation are linked to specific circumstances within both Conventions. Besides, these specific circumstances are not related to the right to primary education for girls.

Therefore this thesis will proceed with examining the rights to water and sanitation under the ICESCR.

b. The ICESCR

Pursuant to article 11, paragraph 1 of the ICESR ‘the States parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family,

44_{Convention on the Rights of the Child (n 23).} 45

UN Committee on the Rights of the Child ‘General Comment 15: On the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health’ (2013) UN Doc CRC/C/GC/15.

46_{Convention on the Elimination of All forms of Discrimination against Women (n 24).}

47_{The Committee on the Elimination of Discrimination against Women has not yet clarified the scope of article}

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including adequate food, clothing and housing, and to the continuous improvement of living conditions.’48

Furthermore, the right to the highest attainable standard of health in article 12, paragraph 1 of the ICESCR stipulates that ‘the States parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’49

While the ICESCR does not provide for the right to water and sanitation, the CESCR has identified the right to water and the right to sanitation through the derivation of these rights from the right to an adequate standard of living and the right to the highest attainable standard of health. According to the CESCR, the right to water and the right to sanitation are implied rights within articles 11 and 12 of the ICESCR.50

The decision of the CESCR to recognize the right to water and the right to sanitation as implied rights under articles 11 and 12 of the ICESCR, has been supported by the international community through the adoption of General Assembly and Human Rights Council resolutions.

2. The Recognition of the Human Right to Water and Sanitation by the

General Assembly and the Human Rights Council

In 2010 the General Assembly recognized the human right to safe and clean drinking water and sanitation via the adoption of Resolution 64/292.51 This resolution was adopted by a majority of 122 States in favour, and none against. However, 41 States abstained from voting. At the time of the vote, the United Kingdom argued that there was no sufficient legal basis for recognizing the human right to water and sanitation. However, the other abstaining countries (including the United States and the Netherlands) mostly based their abstention on the fact that the Human Rights Council was still negotiating a resolution on the same issue. Many

48_{International Covenant on Economic, Social and Cultural Rights (n 9).} 49

ibid.

50_{UN Committee on Economic, Social and Cultural Rights ‘General Comment 15: The Right to Water’ (20}

January 2003) UN Doc E/C.12/2002/11 and UN Committee on Economic, Social and Cultural Rights ‘Statement on the Right to sanitation’ (19 November 2010) UN Doc E/C.12/2010/1, para 7.

51

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abstaining countries therefore believed that it was more appropriate to await the outcome of the “Geneva process”, rather than to adopt a General Assembly resolution.52

A few months later, after the completion of the “Geneva process”, the Human Rights Council adopted resolution 15/9 in which it recognized the human right to water and sanitation with reference to the General Assembly resolution 64/292. According to the Human Rights Council, the human right to water and sanitation is derived from the right to an adequate standard of living and is ‘inextricably related’ to the right to the highest attainable standard of health.53

While the Human Rights Council has recognized the gender sensitivity of the right to water and sanitation,54 the General Assembly has explicitly acknowledged the relationship between the right to water and sanitation and education for girls. In 2013 the General Assembly recognized that the lack of water and sanitation particularly affects women and girls, since they mainly carry the burden of collecting water. In addition, the General Assembly held that many girls in large parts of the world are deterred from going to school due to the lack of sanitation, and more specifically, the lack of separate toilets for them.55

While the human right to water and sanitation is recognized by the international community, the CESCR and the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation have treated water and sanitation as two distinct rights. The following chapters will therefore examine the right to water and the right to sanitation separately.

D. THE HUMAN RIGHT TO WATER

1. The Committee on Economic, Social and Cultural Rights – General

Comment 15: The Right to Water

52_{UNGA ‘General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human}

Right, by Recorded Vote of 122 in Favour, None against, 41 Abstentions’ Press Release GA/10967 (28 July 2010).

53_{UN Human Rights Council Res 15/9 (6 October 2010) UN Doc A/HRC/RES/15/9, para 3.} 54_{UN Human Rights Council Res 12/8 (12 October 2009) UN Doc A/HRC/RES/12/8, para 4.} 55

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In 2003 the CESCR adopted General Comment 15 on the right to water, in which it specified the legal bases of the right to water as well as its normative content and correlated obligations.

With respect to the legal bases of the right to water, the CESCR argued that the right to water is an implied right under article 11. According to the CESCR water ‘clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’. Since the word ‘including’ in article 11 implies that the elements of article 11 are not exhaustive, the CESCR held that the right to water falls within the scope of article 11. Likewise, the CESCR has noted that the right to water cannot be separated from the right to health, and therefore also falls within the scope of article 12.56

a. The normative content of the right to water

According to the CESCR, the normative content of the right to water consists of three essential components: availability, quality and accessibility.

First, availability means that water supplies must be sufficient and lasting for ‘personal and domestic uses’. According to the CESCR, personal and domestic uses include ‘drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene’.57

Second, water for domestic and personal uses must be of an acceptable quality. Water must therefore be safe and it must have an acceptable, taste, smell and colour.58

Third, and final, water should be accessible to everyone, without discrimination. According to the CESCR, the component of accessibility consists of four overlapping dimensions.

The first dimension is physical accessibility. According to the CESCR everyone must have safe physical access to water, water services and facilities. Furthermore, workplaces, households and educational institutions must be provided with or be located close to ‘sufficient, safe and acceptable water’. In addition, everyone should be able to access water,

56

UN Committee on Economic, Social and Cultural Rights ‘General Comment 15: The Right to Water’ (20 January 2003) UN Doc E/C.12/2002/11, para 3.

57_{Ibid para 12(a).}

58_{ibid para 12(b). The CESCR refers to the standards on the quality of drinking water of the World Health}

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water facilities and services in a safe and secure way. Finally, water facilities must be culturally appropriate, gender-sensitive, and they must meet life-cycle and privacy needs.59

The dimension of physical accessibility thus recognizes the importance of water supply in or near schools. It furthermore reflects menstrual needs of girls, since water facilities must take into account cultural and privacy requirements as well as life-cycle needs. Ensuring physical accessibility to the right to water is therefore relevant for the effective enjoyment of the right to primary education for girls.

The second dimension is economic accessibility, which means that water, water facilities and services must be affordable to everyone.60

The third dimension consists of the prohibition of de jure and de facto discrimination. Individuals and groups should be able to access water, water facilities and services without discrimination.61 As has been discussed in the chapter on the right to primary education for girls, providing access to water facilities without discrimination is important for ensuring equal educational opportunities for girls.

The final dimension is information accessibility. According to the CESCR everyone has the right to inform and to be informed on water issues.62

b. States parties’ obligations under the right to water

States parties have the obligation to respect, protect and fulfil the right to water. The obligation to respect obliges States to refrain from interfering directly or indirectly with the enjoyment of the right to water. The obligation to protect entails that States should take measures to prevent third parties from interfering with the right to water.63

The obligation to fulfil encompasses three obligations: the obligation to facilitate, the obligation to promote, and the obligation to provide. States should facilitate the right to water via the adoption of positive measures that assist people with their enjoyment of the right to

59

ibid para 12(c)(i). These aspects are related to sanitation, as will be discussed in the next chapter.

60_{ibid para (12)(c)(ii).} 61_{ibid para 12(c)(iii).} 62_{ibid para 12(c)(iv).} 63

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water. Furthermore, States should promote education that inter alia deals with hygienic use of water. Moreover, States must provide people with water supply, when individuals and communities are unable to provide themselves with access to water. Finally, States should fulfil the right to water, by adopting legislation and national plans of action regarding the full realization of the right to water.64

At the same time, States parties have specific obligations under article 2, paragraph 2 of the ICESCR. According to the CESCR, States must take measures to eliminate discrimination and in particular de facto discrimination. Furthermore, States parties should give special attention to vulnerable individuals and groups, including women and children. States should for example take steps to improve the conditions for collecting water, especially since mainly women carry the responsibility of collecting water. States should also ensure that children are not deterred from exercising their human rights due to the absence of adequate water in schools, households or through collecting water. Therefore, according to the CESCR, providing adequate water to schools is a matter of urgency.65

These specific legal obligations are relevant for the effective enjoyment of the right to primary education for girls. Not only has the CESCR recognized that providing water in schools is a matter of urgency, but it has also recognized that a lack of water in schools should not affect other human rights of children. Therefore this thesis argues that under these specific obligations States should provide adequate water facilities in schools, in order to ensure that girls can exercise their human right to education.

c. Core obligations under the right to water

In addition to the obligations under the right to water, States parties have the following core obligations:

First, States should make sure that people have access to the minimum necessary amount of water for personal and domestic uses. Second, States should ensure the right to water on a non-discriminatory basis. Third, States are obliged to realize safe physical access to sufficient water facilities and services, which are not too far from households. Fourth, States have an obligation to ensure that the security of individuals is not threatened, when accessing water

64_{ibid paras 25-26.} 65

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facilities and services. Fifth, all water facilities and services must be equally distributed. Sixth, States should adopt and implement a national plan of action regarding the implementation of the right to water. Seventh, States have the obligation to monitor to which extent the right to water is realized or not realized. Eighth, States should implement water programmes which protect vulnerable groups within the population. Finally, States have the obligation to prevent, cure and control water related diseases by providing access to adequate sanitation.66

The obligation to ensure water without discrimination and the obligation to implement water programmes that protect vulnerable groups in the population could be relevant for the right to primary education for girls. However, since these core obligations are vague, it is unclear if they are meant to include the provision of adequate water facilities in schools.

Nonetheless, the right to water, as developed by the CESCR consists of certain components and obligations that are relevant for the effective enjoyment of the right to primary education for girls, as has been argued in the above.

However, the nature of the right to water may be problematic for its implementation. The next section will examine academic debates regarding the problematic nature of the right to water.

2. The Problematic Nature of the Right to Water

The implementation of the right to water depends on whether water is recognized as an autonomous or a dependent human right. 67

Since the CESCR has derived the right to water from the right to an adequate standard of living and the right to the highest attainable standard of health, Cahill argues that the right to water can be seen as a dependent human right.68 At the same time, she argues that the right to water has explicitly been recognized, and therefore it could also be seen as an autonomous

66

ibid para 37.

67_{AJ Kirschner ‘The Human Right to Water and Sanitation’ (2011) 15 Max Planck Yearbook of United Nations}

Law 445, 468-469.

68_{A Cahill ‘The Human Right to Water – a Right of Unique Status: The Legal Status and Normative Content of}

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human right. Cahill therefore opines that the right to water is a right of a ‘unique status’, since it is somewhere in between a derivative and autonomous right.69 Cahill’s claim is supported by Kirschner.70

The implication of a dependent human right is that the normative content and State obligations of the right to water can be limited, since they may only relate to the rights to an adequate standard of living and health.71 Furthermore, when States parties violate the right to water, it may be difficult to determine whether such a violation amounts to a violation of the right to water or to a violation of the right to an adequate standard of living or the right to the highest attainable standard of health.72 If the right to water would be considered an autonomous right, individuals would enjoy all components of the right to water and States could be held accountable for enforcing this stand-alone right.73

This thesis agrees with Cahill that the right to water is a right of a ‘unique status’. While the normative content and correlated State obligations mainly relate to an adequate standard of living and health, the CESCR has specifically ascribed the normative content and obligations to the right to water, and not to the right of an adequate standard of living or the right to health. Furthermore, the recognition of the human right to water and sanitation by the General Assembly and the Human Rights Council indicate that the right to water and sanitation is an autonomous human right, even though they have derived this right from articles 11 and 12 of the ICESCR.

Since the right to water is in between an independent and dependent right, the CESCR, the General Assembly, The Human Rights Council or UN independent experts should clarify whether the right to water can only be claimed in relation to the rights to an adequate standard of living and health, or whether it can be claimed as a stand-alone human right.

This matter is relevant for the relationship between the right to water and the right to primary education for girls. When the right to water is recognized as an independent human right, the right to primary education could be claimed in relation to the right to water. However, when

69_{ibid 395.}

70_{AJ Kirschner (n 67) 468-469.} 71_{ibid 467-468.}

72_{A Cahill (n 68) 391.}

73_{A Hardberger ‘Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and}

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water is a derivate human right, the right to primary education for girls could possibly only be claimed in relation to adequate standard of living or health. This could limit the scope of the normative content and State obligations under the right to water.

This thesis therefore argues that the right to water should be treated as an autonomous human right, in order to ensure that its normative content and State obligations will be fully implemented, without limitation.

E. THE HUMAN RIGHT TO SANITATION

1.

Delinking the Human Right to Sanitation from the Human Right to

Water

The CESCR refrained from recognizing the human right to sanitation in General Comment 15. However, the CESCR described the importance of sanitation towards realizing the right to water. For instance, the CESCR stated that providing access to adequate sanitation is one of the main ways of protecting drinking water.74 Moreover, the CESCR acknowledged that a lack of access to adequate sanitation is the main cause of water contamination and diseases related to water.75 Furthermore, access to adequate sanitation in order to prevent water related diseases, is one of the core obligations incumbent upon States parties.76

Academics such as Cahill, Gleick and Hardberger have also recognized that sanitation is an essential component of the right to water. However, they have all refrained from recognizing a separate human right to sanitation.77

In 2009, the newly established Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, Catarina de Albuquerque, started pushing towards recognition of the right to sanitation. According to de Albuquerque, sanitation is strongly related to human

74_{UN Committee on Economic, Social and Cultural Rights (n 56) para 29.} 75_{ibid para 1.}

76_{ibid para 37(i).} 77

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dignity, more than other human rights.78 Moreover, sanitation has distinct features from water, such as social and cultural acceptability.79

The Special Rapporteur has furthermore opined that when water and sanitation are mentioned as one human right, the importance of sanitation is usually overlooked, due to political preferences given to the right to water. Defining sanitation as a separate human right will increase its importance, since States and other actors (such as NGO’s and private entities) will be more likely to increase their attention to this right, which will benefit its realization.80

In 2010, the CESCR decided to follow the General Assembly, the Human Rights Council and the Special Rapporteur, through the adoption of the Statement on the Right to Sanitation in which it recognized sanitation as a human right. Different than the General Assembly and the Human Rights Council, the CESCR refrained from recognizing the right to sanitation as a co-right with water. In the Statement, the CESCR agreed with the Special Rapporteur that sanitation has different features than water and therefore argued that, under certain circumstances, sanitation would require different treatment than water. For example, while most parts of the world use waterborne sanitation, other sanitation solutions that do not require water are being developed. These other sanitation solutions may require different treatment from water.81

The Special Rapporteur has defined sanitation as ‘a system for the collection, transport, treatment and disposal or reuse of human excreta and associated hygiene.’82 The CESCR agreed with this definition and added that by recognizing the right to sanitation, States should comply with the principles of ‘non-discrimination, gender equality, participation and accountability’.83

78_{UN Human Rights Council ‘Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation:}

Human Rights Obligations related to Access to Sanitation’ (1 July 2009) UN Doc A/HRC/12/24, paras 55 and 58.

79

P Obani and J Gupta ‘The Human Right to Water and Sanitation: Reflections on Making the System Effective’ in A Bhaduri J Bogardi J Leentvaar and S Marx (eds) The Global Water System in the Anthropocene: Challenges

for Science and Governance (Springer International Publishing Switzerland 2014) 395.

80_{C de Albuquerque and V Roaf On the Right Track: Good Practices in Realizing the Rights to Water and}

Sanitation (2012) http://www.ohchr.org/Documents/Issues/Water/BookonGoodPractices_en.pdf, 27.

81_{UN Committee on Economic, Social and Cultural Rights ‘Statement on the Right to Sanitation’ (19 November}

2010) UN Doc E/C.12/2010/1, para 7.

82_{UN Human Rights Council (n 78) para 63.} 83

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However, the definition given by the Special Rapporteur and the additional features added by the CESCR do not comprise broader sanitation issues, such as dignity and privacy needs.84 Therefore NGO’s COHRE and WaterAid, define sanitation as: ‘access to, and use of, excreta and wastewater facilities and services that ensure privacy and dignity, ensuring a clean and healthy living environment for all.’85 This thesis agrees with this final definition, since it addresses the broader sanitation issues that are relevant for menstrual and sanitary needs of girls, as will be discussed below.

2. The Normative Content of and the State Obligations under the Human

Right to Sanitation

a. The normative content of the human right to sanitation

The Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation has identified the normative content of the right to sanitation as well as its correlated obligations. According to the Special Rapporteur, the normative content of the right to sanitation consists of five components: availability, quality, physical accessibility, affordability, and acceptability.

As to availability, each household, hospital, workplace, public institution, and school must be provided with sufficient sanitation facilities. People should not be subjected to excessive waiting times in order to access sanitation facilities.86

As regards quality, sanitation facilities have to be hygienically safe to use. Individuals and groups must hast have access to safe water for hand washing, for anal and genital cleansing, and for menstrual hygiene which includes the hygienic removal of menstrual products. Moreover, sanitation facilities must be technically safe to use, especially for children. Safe sanitation also includes education on hygienic uses of toilets.87

Moreover, physical accessibility means that sanitation facilities must be within or close to households, workplaces, health institutions, public places and schools. Furthermore, physical

84_{M Langford J Bartram and V Roaf ‘Revisiting Dignity: The Human Right to Sanitation’ in M Langford and A}

Russel (eds) The Right to Water: Theory, Practice and Prospects (Cambridge University Press, Cambridge 2014), 3.

85_{COHRE UN-HABITAT WaterAid and SDC ‘Sanitation: A Human Rights Imperative’ (Geneva 2008), p. 17.} 86_{Human Rights Council (n 78) paras 70-71.}

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accessibility means that sanitation facilities and the places in which they are located must be safe. The safety of vulnerable individuals and groups, such as women and children must be safeguarded when accessing sanitation facilities.88

Sanitation facilities must furthermore be affordable to all. As a result of an inability to pay for water supply, water disconnections can negatively impact waterborne sanitation. States should therefore adopt context-specific solutions to ensure affordability of sanitation services (for example, by establishing subsidy schemes).89

Finally, sanitation facilities must be culturally acceptable. In many cultures this means that sanitation facilities must secure privacy. Furthermore, in most cultures, cultural acceptability requires separate toilets for men and women in public institutions, and for boys and girls in schools. Moreover, sanitation facilities must meet menstrual needs of women, as well as acceptable facilities for hand washing and for anal and genital cleansing.90

b. States parties’ obligations under the human right to sanitation

According to the Special Rapporteur, States have the obligation to ensure physical and economic access to sanitation without discrimination. States must do so within all spheres of life, including schools. Moreover, in realizing the right to sanitation, States parties must give priority to vulnerable groups, such as girls. 91

States also have the obligation to respect, protect and fulfil the right to sanitation. Firstly, the obligation to respect entails that States must refrain from preventing people and communities from accessing sanitation facilities. For instance, when States disconnect water supply, access to waterborne sanitation will be made impossible. Secondly, as to the obligation to protect, States should ensure that non-State actors (for example private entities) do not negatively impact the right to sanitation. Thirdly, the obligation to fulfil entails that States should take concrete steps towards full realization of the right to sanitation. States must do so by creating an enabling environment for the fulfilment of this right. Finally, States must adopt a national sanitation strategy and a plan of action. 92

88_{ibid paras 75-76.} 89_{ibid paras 77-79.} 90_{ibid para 80.}

91_{ibid paras 63 and 65.} 92

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The Special Rapporteur has not only defined the obligations that States parties have; she has also identified which obligations States do not have. For instance, States parties do not have the obligation to produce toilets; they are only obliged to create an enabling environment for sanitation facilities. However, in case of extreme poverty or natural disasters, States will be required to provide for real sanitation facilities.93

The normative content of the right to sanitation thus explicitly addresses the menstrual needs of women and girls, as well as the importance of sex-segregated toilets in schools. Furthermore, the obligations under the right to sanitation recognize the priority that States must give to girls, and the importance of ensuring access to sanitation in schools on a non-discriminatory basis. However, States are not obliged to establish toilets within schools, they must merely create an enabling environment for sanitation facilities. Yet the fact that States must create enabling environments that are non-discriminatory and take into account cultural, privacy and menstrual needs, provides sufficient evidence that States should provide adequate and separate sanitation facilities in schools.

Furthermore, the normative content and State obligations show that access to water is necessary for realizing the right to sanitation. And since it has been concluded in the above that sanitation is also an essential element of the right to water, it is clear that water and sanitation are intimately related.

3. Realizing a Human Right to Sanitation for the Effective Enjoyment of

the Right to Primary Education for Girls

Both the CESCR and the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation have recognized the impact of the human right to sanitation on the right to primary education for girls.

For instance, the CESCR has acknowledged that the lack of toilets in educational facilities prevents girls from going to school in many parts of the world.94

93_{ibid para 67.} 94

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The Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation has dealt with this issue in more detail. In her first Statement, at the tenth session of the Human Rights Council, de Albuquerque addressed the relationship between the right to sanitation and the right to education for girls. She stated that ‘girls can be prevented from attending school because of a lack of toilets (or of girls-only toilets)’.95

Furthermore, in a 2010 report, the Special Rapporteur affirmed that a ‘lack of access to sanitation can have serious negative impacts on the enjoyment of the right to education.’ One of the reasons is that at the age of menstruation, girls often drop out of school, because their schools do not have sex-segregated toilets.96 Not only the lack of separate toilets, but also the lack of sanitary napkins prevent girls from attending school during their menstrual periods.97 Besides, de Albuquerque has opined that the human rights to water and sanitation are ‘intimately linked’ to the right to education.98

Pursuant to resolutions, statements and reports of the General Assembly, the Human Rights Council, the CESCR, UN independent experts, and NGO’s, this thesis argues that it is broadly recognized that the realization of the human right to water, and in particular the human right to sanitation is essential for ensuring the effective enjoyment of the right to education for girls.

However, the nature of sanitation brings along problematic aspects for its realization, which will be discussed below.

4.

Problematic Aspects of Realizing a Right to Sanitation

Similar to the right to water, the right to sanitation has been derived from the human right to an adequate standard of living and the human right to the highest attainable standard of health. Therefore the same arguments on the problematic nature of the right to water apply to the

95

UN Human Rights Council ‘Statement of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation’ 10th Session HRC (March 2009).

96_{UN Human Rights Council (n 78) paras 30, 51-51.}

Mission to Tuvalu’ (1 July 2013) UN Doc AHRC/24/44/Add.2, para 32 and UN Human Rights Council ‘Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation: Participation in the Realization of the Human Rights to Water and Sanitation’ (31 July 2014) UN Doc A/69/213, para 45.

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right to sanitation. The CESCR, UN independent experts, the General Assembly or the Human Rights Council need to clarify whether the right to sanitation is a stand-alone human right, or whether it can solely be claimed in relation to the right to an adequate standard of living and the right to health.

Furthermore, it is not clear whether the interpretations of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation provide authoritative guidance on the normative content of the right to sanitation and the correlated State obligations.

Moreover, while there is more support for the right to sanitation in relation to the effective enjoyment of the right to education for girls, there is more legal and political support for the right to water than for an independent right to sanitation.99

For instance, the implementation of Millennium Development Goal 7 has been more successful for access to water than for access to sanitation. According to Obani and Gupta, this could be explained by the fact that most developing countries have similar views on the right to water, but have different views on the right to sanitation. Sanitation issues are taboo in many countries, and therefore it is difficult to improve sanitation facilities. And while there is no alternative to safe drinking water, there is an alternative to sanitation, namely open defecation. The demand for sanitation is therefore less urgent than the demand for safe drinking water.100

Finally, the elements of sanitation that relate to menstrual needs of women and girls, may be difficult to implement, since menstruation is a taboo in many cultures. Many existing patriarchal and social structures perceive menstruation as something dirty and impure. Furthermore, girls may feel embarrassed to talk about menstruating and their menstrual needs. Therefore, in many developing countries sanitary solutions for menstrual hygiene are at a low priority.101

99

SL Murthy ‘The Human Right(s) to Water and Sanitation: History, Meaning and the Controversy Over-Privatization’ (2013) 31 Berkeley Journal of International Law 89, 90.

100_{P Obani and J Gupta (n 79) 387-389.}

101_{UN Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation ‘Stigma and the}

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However, by considering sanitation as an independent human right, States and other actors (such as NGO’s and private entities) will give more attention to this right. Increasing the importance of the right to sanitation will improve its realization, which in turn will benefit the effective enjoyment of the right to primary education for girls.

CONCLUSION

The lack of water and sanitation in schools has deterred girls in many parts of the world from attending school. At the age of menstruation girls often drop out of school, fearing the embarrassment and social disapproval that arise from cultural perceptions of menstruation.

The right to primary education recognizes the importance of providing access to water and sanitation in schools in order to boost school attendance of girls. While access to water in general benefits school attendance, access to particularly sanitation reflects menstrual and sanitary needs of girls who start to menstruate.

Providing access to water and sanitation facilities, requires the realization of the human rights to water and sanitation. Whereas the human right to water consists of elements that are relevant for the effective enjoyment of education, the realization of the human right to sanitation is specifically important for ensuring the effective enjoyment of the right to primary education for girls. Contrary to water, sanitation has a dimension of human dignity which relates to cultural acceptability and privacy. Sanitation therefore better reflects the facilities which girls need to stay in school, than water.

However, as a result of the dignity dimension of sanitation, governments – especially in developing countries – have different views on sanitation. Since sanitation is a culturally sensitive topic, it is more difficult to discuss than water. Furthermore, as opposed to water, sanitation has alternatives, such as open defecation. Therefore the full realization of the right to sanitation is less demanding than the full realization of the right to water.

Moreover, menstruation is taboo in many cultures, because it relates to feelings of embarrassments and cultural perceptions of impurity. As a result, the demand for adequate sanitation facilities for ensuring menstrual needs of girls is less urgent.

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The right to sanitation should therefore be treated as an independent human right, instead of a co-right with water. Since there is more legal and political support for water, delinking the right to sanitation from the right to water will increase its importance for governments, as well for other actors (such as NGO’s and private entities). An increased importance for the right to sanitation will benefit its full realization, which in turn will advantage the effective enjoyment of the right to education for girls.

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Water and Sanitation: Key Rights for Ensuring Girls' Education