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Eaux, pauvreté et crises sociales

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Habib Ayeb
, 
Thierry Ruf

Encarts spéciaux. Témoignages des ONG

The Right to Safe Drinking Water as a Human Right

Romina Picolotti

Texte intégral

1This text has been published in the Housing and ESC Rights Law Quarterly, Vol. 2, n° 1 (Geneva: Centre on Housing Rights & Evictions, 2005)

Introduction

2During a research programme studying the dimensions of poverty, human rights and environment, an Argentinian NGO, CEDHA, identified the lack of access to safe drinking water in outlying poor neighbourhoods as a critical problem in the city of Córdoba, Argentina. This two-year research programme focused on specific geographical areas around Córdoba with high levels of poverty. It revealed that the lack of access to safe drinking water was a common and recurring problem in the poorest local communities.

3The problem had four principal dimensions:

  • lack of access to the local public water distribution network;
  • contamination of water distributed by the existing local network, primarily due to a lack of State control over contracted cooperative providers who are charged with providing water to poor communities;
  • contamination of groundwater, principally because of inadequate sanitation infrastructure and spill-over of contaminated water from homemade sanitation systems (domestic cesspools); and
  • contamination of domestic water-storage tanks. This was caused by a number of factors, including: inadequate covers; poor maintenance and hygiene; a lack of regular checks; and atmospheric contamination due to the use of agro-pesticides and chemicals too close to areas of high population density, as well as the presence and/or use of pathogenic waste incinerators, crematories and other industrial pollution nearby.
  • 1 The National Constitution incorporates 11 human rights instruments. These include the Internationa (...)

4Argentina’s legal system guarantees a broad range of economic, social and cultural rights (ESC rights). The right to a healthy environment is guaranteed in the Constitution itself, while the rights to health, an adequate standard of living, and food have constitutional status because the international instruments providing for them have been incorporated into Argentina’s Constitution1. In light of this legal framework and the pressing need for the State to perceive the problem of access to safe drinking water as a human rights problem, CEDHA decided to begin to litigate cases addressing the various dimensions of the problem in the city of Córdoba.

Deciding to litigate

5When selecting cases, CEDHA uses the following criteria: population density; the degree of poverty; existing lack of access to safe drinking water; proximity to the public water distribution network; social organisation of the affected community, and the judicial viability of the case.

  • 2 This is due to, inter alia, the fact that the judiciary is convinced that influencing public polic (...)

6The principal obstacles that CEDHA encountered when litigating were the lack of a tradition of judicial enforcement of ESC rights, and the limited capacity and willingness of the judicial sector to influence public policy decisions2. Other hurdles included the economic crisis being experienced by the country as a whole, as well as by the provincial and municipal governments.

Facts of the case

  • 3 MARCHISIO José Bautista y otros – AMPARO (Expte. N° 500003/36).

7This article focuses on a case addressing the lack of access to safe drinking water in three poor neighbourhoods of the city of Córdoba, Argentina, which are not connected to the public water distribution network, and whose domestic groundwater wells are heavily contaminated with faecal matter, nitrates and nitrites3.

  • 4 Statistics from Perfil de la Pobreza en Córdoba [Profile of Poverty in Cordoba], SEHAS.

8The affected neighbourhoods are Chacras de la Merced, Villa la Merced and Cooperativa Unidos. They have a combined population of around 4,500, approximately 43% of whom are minors under 17 years of age and nearly 5% of whom are older than 64. Approximately 30% of the neighbourhood’s population is actively employed, while unemployment exceeds 23%. The average monthly income per household (in families with at least one employed member) is US$ 175. The level of illiteracy is nearly 3%4.

9Towards the end of the 1960s, the city built a sewer-water treatment facility called the EDAR Bajo Grande (henceforth ‘plant’ or ‘facility’) on the banks of the Suquía River, two kilometres upstream from Chacras de la Merced community, whose existence predates construction of the facility by 30 years. Chacras de la Merced borders the Villa la Merced and Cooperativa Unidos communities. The EDAR facility was inaugurated in 1987, under municipal control, with the capacity to treat 120,000 cubic meters per hour (m3/h) of sewer-water.

10As the city of Córdoba kept on growing, the Municipality continued authorising new sewage connections, thereby progressively increasing the volume of sewer-water going into the plant. As a result, the plant now has two extremely pressing problems. The first has to do with the lack of maintenance and supplies of basic products needed to treat the sewer-water. Due to these limitations, the plant is currently operating at 70% of its full capacity. The second problem relates to the quantity of sewer-water flowing into the plant. Even if the plant were functioning at 100% capacity, it could only treat 120,000m3/h. At present, the plant receives an average of 140,000 to 150,000m3/h. This data indicates that the plant is receiving between 20,000 and 30,000 m3/h of sewage water that it could not treat even if it were operating at 100% capacity. The large disparity between the quantity of incoming sewage and the capacity of the facility to treat it results in daily spillage of untreated sewer-water directly into the Suquía River.

  • 5 A laboratory of the National University of Córdoba.

11In July of 2003, on CEDHA’s invitation, a representative of the CEQUIMAP laboratory5 arrived at Chacras de la Merced to take five water samples from the community. The faecal bacteria (faecal coliform) content of the river water collected downstream from the plant was 40 times higher than that of the sample taken upstream.

12The samples taken from homes in the community also indicated severe contamination of water with faecal matter; the level of contamination increasing in direct proportion to the proximity of the home to the plant. Some of the samples showed up to 2,000 faecal coliforms per 100 ml. The World Health Organisation (WHO) has stated that no faecal coliforms should be present in water destined for human consumption.

Legal strategy

13The case was litigated by CEDHA’s Human Rights and Environment Clinic. The legal strategy chosen in the case parallels CEDHA’s general legal strategy, which is grounded in the objective of enforcing ESC rights. CEDHA is working with environmental and human rights law to create positive jurisprudence, which will enable continual progress towards the complete enforcement of all ESC rights. With the approval of the respective plaintiffs, the organisation distinguishes between all the rights that have been violated and a selection of these rights, which they choose to present to the courts for enforcement. Thus, in this case, while the contamination of the water source led to the violation of multiple human rights, CEDHA only sought judicial enforcement of certain rights. These included the right to safe drinking water, the right to a healthy environment, the right to health, and the right to an adequate standard of living.

14With a view to expediting the process as much as possible, CEDHA chose to present an ‘amparo’ petition based on two main criteria. The aims of the case were principally limited to securing safe drinking water for the affected parties and ensuring that contamination of the Suquía River immediately cease.

15Actions were filed against the Provincial State and the Municipality of Córdoba. The action against the Provincial State was based on its obligation to ensure that the water of the Suquía River is suitable for human and industrial use, and on its duty to provide direct or indirect access to safe drinking water to the public, in conformity with previous jurisprudence and internal legislation. The action against the Municipality centred on the injurious and dangerous environmental degradation and its human consequences. This strategy enabled CEDHA to broaden the range of parties potentially responsible for violating rights, and to hold them accountable in differentiated but collective terms. The NGO argued that the State is the guarantor of human rights, irrespective of the internal organisational structure it might choose to adopt.

16This approach enabled CEDHA to capitalise on existing and ongoing internal conflict between the Municipality and the Province. Rather than claiming innocence in the matter, the two parties proceeded to point the finger of responsibility at each other. However, although the duality and conflict between political levels operated in favour of the litigants at this stage of the case, it proved problematic later on when it came to execution of the court order, as the political differences created significant barriers to implementing the order.

  • 6 CEDHA carefully selected sites where they felt they could obtain solid evidence that the Suquía Ri (...)

17As part of its strategy, CEDHA requested that members of affected communities be present at various stages of the process. This practice, which is quite unusual for the kind of legal action brought in this case, exerted strong political pressure on all the parties involved. The filing was jointly made by CEDHA and four community members, who had previously made their homes available for water sampling6. The strategy involved utilising the legal action as a political pressure mechanism. The objective was to confront the State with a ‘Pandora’s box’ of thousands of potential subsequent cases to be brought by other affected community members, should the first action not result in a permanent solution to the problem of inadequate access to safe drinking water.

18The following international human rights instruments were invoked in the case filing presented to the court: the Universal Declaration of Human Rights (UDHR); the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC). The case was ultimately sustained by evidence coming primarily from the State’s own reports on the functioning of the treatment facility and the levels of contamination of the Suquía River.

The ruling

  • 7 See Committee on Economic, Social and Cultural Rights, General Comment No. 15, The right to water (...)

19The case was resolved in the first instance by the Civil and Commercial Court of the 8th Nomination. Having accepted the standing of the NGO (CEDHA) and the four affected community members, the judge ruled that the State was responsible for violating the rights to a healthy environment, to an adequate standard of living, to access to safe drinking water, and to health. The Court recognised the human right to safe drinking water, which is implied by the right to health. The judge explicitly cited the UDHR, the ICESCR, and General Comment No. 15 on the right to water of the Committee on Economic, Social and Cultural Rights7. The Court also recognised the immediacy with which the State must address the environmental situation, and that such immediacy implies the obligation to adopt urgent measures with a view to avoiding irreversible damage to the ecosystem and – consequently – to those individuals who inhabit the environment in question. The Court stated that:

[T]he environment is not only a collective good, but a requisite sine qua non for [the existence of people], [it] therefore is an individual patrimony and at the same time, a collective one, with implications for present and future generations, for which we must not only act in defence of present values, but in the name of future persons and environmental values.

20With respect to the judicial enforcement of the rights at issue in this case, the Court declared that:

[W]hile it is good that in a State of rule of law … a judicial entity [does] not conduct activities that are the responsibility of the Parliament or Presidency, the discretionary and privative competence of an organ of the State has limits, and … the action of the Judicial power, in the face of the degeneration of those responsibilities, does not imply an invasion of one power over another, but rather the framing of public authority to uphold the Constitution and the law.

21The Court ordered that:

  • 8 Decree 529/94 is the internal legislation with which the provision of access to water must comply.

[T]he Municipality of Córdoba adopt all of the measures necessary relative to the functioning of [the facility], in order to minimise the environmental impact caused by it, until a permanent solution can be attained with respect to its functioning; and that the Provincial State assure the [plaintiffs] a provision of 200 daily litres of safe drinking water, until the appropriate public works be carried out to ensure the full access to the public water service, as per decree 529/948 .

22Full costs were awarded to the plaintiffs.

Execution of the order

  • 9 The judge is expected to respond to this request in March or April.

23In the process, CEDHA succeeded in compelling the Municipality to present an ‘integral sewage plan’ under which US$ 1.75 million was to be invested for rehabilitation of the existing infrastructure, and US$ 6 million in order to increase plant capacity. CEDHA requested formal clarification of the ruling in order to ensure that the Judge would order precisely the measures necessary with regard to the functioning of the plant, in order to minimise its environmental impact until a permanent solution was reached, including specifying activities and their implementation time frame9.

  • 10 The works include the digging of a new water well, the construction of new public water-storage fa (...)
  • 11 CEDHA is still negotiating the quality of pipes to be used in construction.

24In December 2004, the Province of Córdoba commenced the public works required to provide fresh and safe water to the affected communities10. The Provincial State has since finished construction of the main section of the water system. The second phase of building – establishing connections to homes in the communities – is now due to begin. Work has also begun on the piping necessary to supply water to the neighbourhoods. This will eventually provide Chacras de la Merced, Cooperatives Unidos and Villa la Merced with permanent access to safe drinking water. The Municipality has undertaken to furnish the necessary pipes for home connections11. Construction work is expected to be completed by March 2005.

  • 12 Resol. D-79/04, 26 Oct. 2004.

25There have been several other developments as a result of the Court’s ruling. The Municipal Executive ordered by decree that “the Executive will not authorise new sewage connections until [the Municipality] improves the capacity of the sewage plant”12. This has had one interesting result — the coincidental alignment of the position of important economic actors such as the Construction Council and the Engineering, Architects and Real Estate Associations with that of CEDHA. As these actors cannot publicly call for new connections to be authorised, they are instead using economic arguments to exert pressure on the Executive to improve the plant as fast as possible. Their principal arguments are that as construction work has ceased because no new buildings can be connected to the sewage system, construction workers, architects and engineers, etc. are losing their jobs. In addition, real estate associations are losing money because nobody wishes to buy new apartments with no sewage connections.

26In addition, the Municipal Congress recently passed a law dictating that, from now on, all revenue from sewage and sanitation taxes is to be invested exclusively in the sewage system. Annually, the Municipality collects around US$ 10 million in sewage taxes. Previously, this money was allocated at the Executive’s discretion. As the facts that led up to this case reveal, they were obviously never invested in improving the sewage treatment system.

Conclusion

27A request for the provision of permanent access to safe drinking water is not merely a simple request for the provision of a public service. Rather, it is founded on the desire to assure the full realisation of the human rights to health, food, an adequate standard of living, a healthy environment and of access to safe drinking water. The Court in this case established itself as the guarantor of the human rights of the residents of these neighbourhoods. This decision constitutes an important step towards the judicial enforcement of these rights.

Notes

1 The National Constitution incorporates 11 human rights instruments. These include the International Covenant on Economic, Social and Cultural Rights, the Universal Declaration of Human Rights, and the Convention on the Rights of the Child.

2 This is due to, inter alia, the fact that the judiciary is convinced that influencing public policy constitutes interference with the powers of the other branches of government. Under Argentinian law, such interference by a judge may result in his or her dismissal. Therefore, judges are extremely careful to avoid such behaviour.

3 MARCHISIO José Bautista y otros – AMPARO (Expte. N° 500003/36).

4 Statistics from Perfil de la Pobreza en Córdoba [Profile of Poverty in Cordoba], SEHAS.

5 A laboratory of the National University of Córdoba.

6 CEDHA carefully selected sites where they felt they could obtain solid evidence that the Suquía River and domestic water wells were heavily contaminated because of the plant. For example, they took samples from the river upstream and downstream of the plant, and from a school in one of the neighbourhoods which is attended by approximately 300 children who eat there and drink water from a local water well on a daily basis.

7 See Committee on Economic, Social and Cultural Rights, General Comment No. 15, The right to water (29th session, 2003), U.N. Doc. E/C.12/2002/11 (2003), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6, p. 105 (2003).

8 Decree 529/94 is the internal legislation with which the provision of access to water must comply.

9 The judge is expected to respond to this request in March or April.

10 The works include the digging of a new water well, the construction of new public water-storage facilities and the installation of a pneumatic pump.

11 CEDHA is still negotiating the quality of pipes to be used in construction.

12 Resol. D-79/04, 26 Oct. 2004.

Auteur

President and Founder of the Center for Human Rights and Environment (CEDHA)

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