The human right to sanitation is simply not optional; it is not a strategy that can be voluntarily adopted (or not). All countries in the world have recognized the human right to sanitation. These commitments are underpinned by legally binding obligations in human rights treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) which are almost universally ratified.
While human rights may sometimes seem narrow and rigid, they actually offer a flexible framework for ensuring adequate sanitation for all. The human right to sanitation does not call for conventional sewers or any other particular technology. The people who use, and often construct and finance, sanitation facilities determine what is an appropriate solution. Even more than for other human rights, participation is key for determining solutions for a service as personal as sanitation. Human rights do not ignore costs and other constraints—the notion of progressive realization (provided for in the ICESCR) allows for a phased approach of improvements over time.
But as Gordon McGranahan pointed out in a recent contribution, the real challenge is finding the most appropriate strategies for implementation. The handbook by the UN Special Rapporteur on the Human Rights to Water and Sanitation provides broad guidance, which, together with the involvement of sanitation professionals, can take the implementation of human rights to the next step.
The Orangi Pilot Project that McGranahan discusses may not have used the language of human rights, but it reflects human rights principles. A great part of the success was the focus on ensuring that municipal governments built the necessary trunk sewers to support the work done by the community.
States have a clear role to play in the realization of human rights, but individuals will generally be responsible for constructing their own latrines or installing a toilet. Indeed, this project is a perfect example of how demand-led efforts and human rights are compatible. In the context of other human rights, such as food, it is accepted that individuals contribute to the realization of human rights with their own means: some people purchase food, others grow their own, whereas others may need assistance by governments. The same holds true in the context of the right to sanitation—states have a clear role to play in the realization of human rights, but individuals will generally be responsible for constructing their own latrines, or installing a toilet, and paying charges for these services.
So when it comes to sanitation, why do we really need human rights? Long before the explicit recognition of the right to sanitation, people, organizations and states contributed to its realization. Yet, these practices are far and few between. Malpractice, maladministration, and misallocation—indeed bad practices in general—persist. Human rights serve as a framework, a constant reminder that states need to ensure that people can access safe, affordable and acceptable sanitation, and to provide the necessary support for this to happen. They can be translated into checklists to ensure the integration of human rights in legislation, institutions, financing processes, service delivery and everywhere in between.
While the human rights framework is flexible, it does set important parameters for determining priorities. For example, human rights demand achieving substantive equality, which requires states to prioritize the most marginalized and disadvantaged. It is unacceptable if large portions of budgets are used to improve services in middle class areas while other areas, such as slums, remain without access to even basic services.
Many people rely on informal services and, ultimately, regulation can ensure better quality services in line with human rights standards. However, human rights also provide important guidance for the process of adopting such regulation. Above all, they require ensuring that people are not left with services they can no longer afford and experience retrogression in the realization of their human rights. Different countries have adopted different solutions to dealing with informal service provision. For instance, in Maputo, Mozambique, informal providers are tolerated and integrated into service delivery, whereas in Kenya, the government seeks to link informal service providers to the formal system in the long term.
Flickr/Oxfam International (Some rights reserved)
Kenyans funded by international human rights NGOs construct latrine slabs for future houses in their local community.
As a framework, human rights are not only concerned with one person’s access to a latrine, but also with the effects the lack of adequate sanitation has on other people’s human rights: the human rights to health, housing, a healthy environment, among others address the challenges that “other people's shit” pose to the broader community and environment.
Though McGranahan cautions that a wave of litigation on the right to sanitation could cause more harm than good, this fear seems largely unfounded. Human rights are focused on more than just claiming rights in court—both in theory and practice. For the right to sanitation, there is very limited case law. However, experience from other sectors also shows that litigation can play a very useful role in advancing the realization of human rights, most often when combined with other advocacy strategies.
In Mukuru, Nairobi, women have mobilized to draw attention to the entirely inadequate sanitation conditions due to insecure tenure, overcrowding, lack of planning, and poor drainage. They have documented the gendered dimensions of the lack of access to sanitation and have gained support from the Akiba Mashinani Trust. While considering litigation, they are currently focusing on compelling the government to conduct a public health inquiry. The case demonstrates that there is no blue-print for the best strategy. Communities will decide how they can best address the specific barriers they face. It also shows that there are issues such as a lack of planning or the lack of security of tenure that are very difficult for a community to resolve on its own, but require government accountability.
While the focus of the human right to sanitation is not necessarily on litigation, it is ultimately about accountability. Communities sometimes achieve amazing progress, and it is essential to draw on their experiences and to ensure meeting their preferences. But communities must not be forced to “muddle through” on their own, and governments be let off the hook. Governments must create an enabling environment for the realization of everyone's human rights, and they must ensure that human rights are realized for the poorest, regardless of ability to pay. Putting human rights front and center means putting people front and center, and the human right to sanitation reminds us that governments are accountable to the people.