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Human rights accountability through treaty bodies: examining human rights treaty monitoring for water and sanitation.

IV. EVOLUTION OF WATER & SANITATION IN STATE REPORTING

The depth of human rights reporting on water and sanitation has evolved dramatically, and these changes in the thematic content of state party reports to the CESCR chronicle government efforts to implement human rights treaty obligations. Coding state human rights reports provides a quantitative representation of the qualitative information reported to the Committee. (158) Through analytic coding of the 170 human rights reports described above, it becomes possible to identify systematically the trends, patterns, and interrelationships across indicators of the human rights to water and sanitation. (159)

This analysis begins by assessing the number of indicators per state report in each year of the study, providing the complete set of water and sanitation codes that will be later subdivided to assess correlations across the fourteen-year dataset of state reports to the CESCR.

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However, because of wide variations in the length of state reports, examining these reports as a single unit provides an incomplete picture of the depth of state party reporting on water and sanitation within reports.

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The length of state party reports to the CESCR has varied dramatically over time, reflecting in part the changes in reporting practices that followed the 2006 Harmonized Reporting Guidelines, (160) and simply examining indicators at the report level does not fully reflect the relative prioritization of the rights to water and sanitation in state reporting. (161) For example, a decline in water and sanitation reporting might lead to the erroneous conclusion that states have placed less emphasis on water and sanitation rights when the decline in attention may have been due merely to an overall decrease in the length of reports. By adjusting for the average number of paragraphs in state reports, this study's focus on the average number of codes per paragraph seeks to analyze the depth of state reporting on the rights to water and sanitation while controlling for variations in the overall length of state reports to the Committee.

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By analyzing the evolving thematic content of references to water and sanitation--at both the report and paragraph levels--this part examines state party reports to the CESCR to investigate how they reflect (a) changes in state implementation of human rights, (b) developments in international human rights norms, and (c) specificity in treaty body reporting guidelines.

A. Changes in Human Rights Implementation

The implementation of economic, social, and cultural rights has become a priority for an increasing number of states in recent decades, (162) and states have come to prioritize safe drinking water and adequate sanitation in reporting on their implementation efforts to the Committee. (163) However, state reports have been inconsistent in the content of their reporting on water and sanitation, with developing states addressing water and sanitation obligations far more extensively than developed states. (164)

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Whereas many developing states have discussed water and sanitation comprehensively, created separate reporting sections on water and sanitation, and addressed challenges to national implementation, (165) many developed states have rarely discussed water or sanitation. (166) When they have, these developed states have reported scant details about how they are progressively realizing these rights, often stating dismissively (and erroneously) that the entire population has complete access to water and sanitation. (167) Focused on the information that states have reported on their implementation efforts, these efforts are typically framed in state reports (1) around a "structure-process-outcome" typology and (2) through cross-cutting rights-based principles. Given such inconsistencies across states in reporting on human rights implementation, these results highlight the need for uniformity in the ways that states parties consider safe drinking water and adequate sanitation as part of their implementation obligations.

1. Structure-Process-Outcome Typology

The types of information reflective of the implementation of human rights are categorized by a specific "structure-process-outcome" typology. Illustrative of causal pathways, this framework for "commitment-effort-result" assesses the links between policy cause and social effect, examining the processes by which rights are realized and correlating outcome measures with changes in structure and process. (168) Arising out of early efforts to monitor the right to health, (169) this framework for evaluating implementation has come to be applied as a basis for monitoring compliance with all human rights by all human rights treaty bodies: (170)

* Structure--The UN has noted that "[structural indicators reflect the ratification/adoption of legal instruments and existence of basic institutional mechanisms deemed necessary for facilitating realization of the human right concerned." (171) Encapsulating the law "on the books," changes in structure reflect the codification of international rights in the national constitution and in domestic legislation. (172)

* Process--Process indicators "capture the cause element of a cause and effect relationship between the efforts of States and the fulfillment of the right under examination." (173) The examination of processes recognizes the importance of government conduct to realize rights (174) and includes the policies, strategies, programs, interventions, budgets, and activities developed to implement state obligations. (175)

* Outcome--Outcome indicators measure the results of state efforts, capturing the "attainments, individual and collective, that reflect the status of realization of human rights in a given context." (176) With outcome measures often drawn from socio-economic statistics (e.g., mortality rates), they provide information on the actual enjoyment of rights but often lag in time behind structure and process indicators.

The UN adopted this tripartite typology to focus states on incremental implementation efforts that could be taken to progressively realize rights and could be assessed by human rights treaty bodies. (177) Because water and sanitation rights depend on legal reforms and resource allocations, a focus on outcome alone provides insufficient information about state implementation of human rights obligations, creating an imperative to focus separately on structure and process.

In framing state reports under this structure-process-outcome typology, state reporting has expanded over time beyond water and sanitation outcomes, with states increasingly reporting on changing structures and, to a greater extent, processes to implement water and sanitation obligations.

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While reporting on water and sanitation outcomes holds relatively steady, increases in reporting on structure and process have more than doubled in the average number of codes per paragraph, from 0.005 to 0.011 (structure) and from 0.015 to 0.033 (process). (178) Economic and social rights have been incorporated in an increasing number of national constitutions, (179) and in reporting on these structural changes to the Committee, states parties have discussed both existing constitutional guarantees that have been interpreted to address water and sanitation (180) and new constitutional reforms to codify these expanding rights. (181) Further, building from an early focus on obligations of conduct, (182) states parties have expanded reporting on processes to implement human rights obligations, highlighting the development of new ministries, budgets, and programs specific to safe drinking water and adequate sanitation. (183)

The UN's effort to focus states on structural and process indicators is having its intended effect, leading to increased reporting on the information necessary for the Committee to assess these indicators of human rights implementation. However, these results raise concerns that in focusing reporting on structure and process, states have not linked these commitments and efforts to the ensuing results, neglecting consistent outcome indicators that are essential to determining the cause-and-effect dynamics of rights realization. (184) Although reporting on outcomes is often drawn from standard socio-economic measures, the lack of consistent outcome measures in state reports has limited the Committee in monitoring the progressive realization of water and sanitation rights through comparable information over time.

2. Rights-Based Principles

The UN has described the "rights-based approach" to public policy as a means to address fundamental human rights principles for, inter alia, non-discrimination and equality, participation, accountability, and sustainability. (185) These crosscutting human rights principles provide safeguards that are crucial to realizing all human rights. (186) Because these principles pose immediately binding (and often cost-neutral) obligations for the human rights to water and sanitation, they are not dependent on national resources or progressive realization, and the Committee has expected state parties to safeguard these principles completely. (187)

Yet states have largely refrained from any discussion of these rights-based principles in their CESCR reporting on water and sanitation, with a small absolute number of indicators (zero or close to zero codes on any particular human rights principle) compounded by a small upward trend in code occurrences (with slopes varying from 0.001 to 0.004).

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With distinct reasons for the neglect of each human rights principle, it becomes clear that the focus of the UN system on these crosscutting principles is not at all reflected in the content of state party reports to the Committee:

* Non-discrimination and equality--Although General Comment 15 specifically extended to water the ICESCR's prohibition on "discrimination on the grounds of race, colour, sex, age, language, religion, political or ... health status," (188) few states parties examine discrimination or inequality in their water and sanitation reporting to the CESCR. (189) Whereas states sometimes examine inequalities on the basis of geography--either between rural or urban populations (reflecting data compiled by the WHO/UNICEF Joint Monitoring Programme (JMP) and requested by the CESCR reporting guidelines) or geographic regions (often mentioning specific villages, towns, cities, or regions) (190)--further data disaggregation is often not undertaken:
Specific "Population Addressed" Codes as a Proportion of All
"Population Addressed" Codes (%)

                   1999   2000   2001   2002   2003   2004   2005

Urban               26     19     27     27     22     14     26
Rural Geographic    35     22     29     35     30     28     25
Region All other    14     26     21     0      18     14     20
Populations         26     33     24     38     30     44     29

                   2006   2007   2008   2009   2010   2011   2012

Urban               23     26     22     20     20     14     22
Rural Geographic    25     29     28     28     32     23     26
Region All other    14     17     20     20     17     10     17
Populations         38     27     30     32     31     52     35

Note: "All other populations" includes the following codes: women,
children, racial and ethnic minorities, migrants, refugees, people
with disabilities, older persons, prisoners, and other vulnerable
populations.


Despite Committee recognition that data disaggregation is necessary to address marginalized and vulnerable populations, (191) states parties report little information about the specific populations affected by a lack of safe drinking water and adequate sanitation. (192) Considering the number of possible populations in the "population addressed" coding category, this striking neglect of such populations in state reporting highlights a lack of disaggregated water and sanitation data, thwarting assessments of both de jure and de facto discrimination and limiting the Committee's ability to recommend affirmative measures to reduce inequality. (193)

* Participation--Participation allows for systems and services that more effectively address local needs, facilitating a rights-based approach to water and sanitation where community members are able to engage with governmental and non-governmental providers in: setting the agenda, identifying policy goals, implementing programs, and monitoring program effectiveness. (194) Despite increasing human rights focus on full, free, and meaningful participation in the water and sanitation sectors, (195) state party discussion of participation is extremely limited in the context of water and sanitation reporting, remaining below an average of 0.002 codes per paragraph before spiking in 2012 at 0.008 codes per paragraph. (196) Where policies and practices must be in place to enable participation, overcoming structural barriers that exclude marginalized groups, (197) the specific mechanisms of community participation in the water and sanitation sectors must be context specific, dependent upon decision-making power within communities, and reported in state human rights reporting. (198)

* Accountability--To ensure accountability for implementing human rights to water and sanitation, it is necessary for states to develop: domestic monitoring systems to collect accurate data, independent reviews to provide institutional oversight, and enforcement mechanisms to ensure corrective action. (199) With accountability consistently found to be the most frequently reported principle of the rights-based approach to water and sanitation (albeit miniscule when compared with other coding categories), states have discussed accountability through a focus on judicial review, (200) system oversight, (201) and local monitoring. (202) These national accountability mechanisms provide information transparency and public scrutiny, facilitating legal remedies for violations in the water and sanitation sectors. (203) Supporting this domestic accountability through international scrutiny, the first UN Special Rapporteur has used her country missions to highlight gaps in national governance, serving as an external accountability mechanism in select states and focusing on accountability mechanisms as central to human rights implementation. (204)

* Sustainability--Since the early 1990s, sustainability has come to be seen as a key indicator of the rights-based approach to development, (205) ensuring that the progressive realization of economic, social, and cultural rights is not set back by retrogressive measures, financial mismanagement, or infrastructure neglect. (206) Sustainability considerations are necessary to guarantee that states use the maximum available resources to maintain water sources and sanitation systems on a continuous and predictable basis. (207) As seen in state reports, governments have begun to focus on resource conservation and infrastructure maintenance, addressing sustainable financing for water and sanitation facilities and services. (208) With the CESCR recognizing an imperative for states parties to address sustainability even in times of economic crisis, (209) the UN Special Rapporteur has recommended that states pursue holistic financial planning for the operation and maintenance of water and sanitation systems (210) and has sought to include a water and sanitation goal as part of the post-2015 Sustainable Development Goals. (211)

Belying the importance of these cross-cutting human rights principles, the rights-based approach to water and sanitation is largely neglected in state reporting on the human rights to water and sanitation, and there has been little variation over time in the limited information that is reported to the Committee. Without consistent data that reflect these human rights principles, (212) states have been hard pressed to report this necessary information on the rights-based approach to safe drinking water and adequate sanitation, raising an imperative to identify the universal indicators that the Committee would need to monitor human rights implementation.

B. Development of Human Rights Norms

Beyond these changes in state implementation of water and sanitation obligations, state reporting also reflects the normative development of the human rights to water and sanitation through the UN human rights system. Few states discussed safe drinking water or adequate sanitation prior to the CESCR's General Comment 15; where they did, they did so under rights to housing, (213) an adequate standard of living, (214) and health. (215) Although some states parties had reported detailed water information (216) and NGOs had pressed for the formal codification of an independent right, (217) no state had ever before discussed a "right to water" in reporting to the Committee. (218)

The Committee sought, through General Comment 15 to permanently alter the way that states parties address water and sanitation. (219) Providing the first explicit normative foundation for a "right to water," General Comment 15 interpreted this right out of the right to health in ICESCR article 12 and the right to an adequate standard of living in ICESCR article 11, (220) and the Committee thereafter requested that states parties report on the implementation of water and sanitation obligations under this independent right. (221) In the wake of the normative developments in General Comment 15, states began to raise the right to water in reporting to the Committee. As the UN human rights system clarified these norms further through the 2007 High Commissioner report, (222) additional states reported explicitly on rights to water and sanitation. These reporting effects became more pronounced with the 2010 General Assembly Resolution on the Right to Water and Sanitation, which gave international political support to these new human rights. (223)

Such normative developments in international law have fundamentally changed the language with which states report to human rights treaty bodies, framing how states consider water and sanitation as part of their human rights implementation efforts.

Examining the effect of these normative developments, this study categorized state reports into time periods demarcated by seminal advancements in the normative content of human rights for water and sanitation:

(a) 1999-2002--Before General Comment 15 (November 2002);

(b) 2003-2007--Before the High Commissioner's Report (August 2007);

(c) 2008-2010--Before the General Assembly Resolution (July 2010)/Committee Statement on Right to Sanitation (November 2010); and

(d) 2011-2012--Current Norms on Human Rights to Water and Sanitation.

As noted in the table above, these developments in international law are reflected in the increased breadth of reporting on the human rights to water and sanitation; however, as discussed below, these normative developments have decreased the depth of that reporting. While expanding the cursory rhetoric on water and sanitation rights, these legal developments have not deepened the normative content of state reporting.

Following from each expansion in international legal standards on water and sanitation rights, there has been a steady contraction in the depth of human rights reporting on water and sanitation, with this paradoxical decrease in the depth of state reporting (driven almost entirely by developing states) reversed only by the 2010 General Assembly Resolution. (224)

Where normative developments have been articulated without the political support or normative detail necessary for treaty monitoring, these pronouncements from within the UN human rights system--despite changing the rhetoric surrounding water and sanitation rights--have been largely ineffectual in changing state implementation. (225) As demonstrated by the results below, the Committee has sought to have states implement rights to water and sanitation independent of wealth and integral to health, but the effects are neither consistent nor sustained due to the lack of detail in normative standards for (1) individual affordability and (2) public health.

1. AAAQ & the Focus on Affordability

Where the CESCR's General Comment 14 had introduced an AAAQ indicator framework (focused on availability, accessibility, acceptability, and quality) for the right to health, (226) General Comment 15 expanded this focus, introducing an approach that also accounts for affordability (as derived from "economic accessibility") under the right to water. (227) Affordability was seen as crucial in the context of water and sanitation (228)--with states having long focused on water and sanitation as indicators of poverty, (229) with neoliberal constraints facilitating the privatization of national water systems, (230) and with unaffordable water tariffs leading to disconnections, protests, and "water wars." (231) Following a full decade of state reports since the adoption of General Comment 15, however, an examination of these reports supports early fears that this approach lacked definition in framing the progressive realization of the rights to water and sanitation, (232) with state reports selectively addressing the normative content of these rights and largely neglecting the vague indicators of individual affordability.

* Availability/Accessibility--Where availability is intended to refer to the quantity of water, sanitation, and hygiene facilities sufficient to meet individual needs in all spheres of life and accessibility is intended to refer to the ability to physically access water sources or sanitation facilities, (233) states often do not distinguish information on availability and accessibility in reports to the Committee, using these terms interchangeably to refer to the amount of water utilized, (234) the presence of water and sanitation within homes and workplaces, (235) or the utilization of a specific water source or sanitation facility. (236) Because of this normative conflation in state reports, it may be necessary to detail further the distinctions between these normative indicators to assure appropriate implementation in state practice and accurate reporting to the CESCR.

* Acceptability--Having been overlooked in General Comment 15, discussion of acceptability for the rights to water and sanitation is a clear outlier in state reporting, with average discussion on this indicator approaching zero across all time periods. As acceptability is seen as integral to individual dignity, a central feature of human rights, (237) this near absence of reporting on social and cultural acceptability (particularly, as now recognized by the Committee, in the context of sanitation and hygiene (238)) presents a troubling disconnect between the normative prioritization of this indicator under international law and national efforts to implement this norm in water and sanitation practice. (239)

* Quality--Linking water and sanitation, international law requires that drinking water be safe for consumption, with water services, sanitation facilities, and hygiene practices that prevent human excreta from contaminating water supplies and harming public health. (240) Although the term "safe" is considered imprecise in the water and sanitation communities, as it fails to specify the composition of drinking water, (241) states nevertheless report on quality using declarations of "safe water," often without definition, qualification, or data on water content. (242) With this misnomer extended by the 2010 General Assembly Resolution and the mandate of the UN Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, (243) this language on safety in state reports, when used without qualifying language or scientific data on chemical hazards and microorganism contaminants, lacks the detail required to assess the quality of drinking water and sanitation necessary to protect health. (244)

* Affordability--While affordability, which refers to the financial feasibility of household expenditures on water and sanitation (without limiting the ability to buy other basic goods and services), has shown a steep increase in state reporting since General Comment 15 (from 0.0014 codes per paragraph in 1999-2002 to 0.0035 codes per paragraph in 2011-2012), this attention to affordability in state reports pales in comparison to the normative focus of state reporting on availability, accessibility, and quality. Requesting further information on individual affordability in the 2008 Reporting Guidelines, the Committee recommended that states report on "[t]he measures taken to ensure that water services, whether privately or publicly provided, are affordable for everyone." (245) However, despite this increasing focus on affordability in the human rights system, the lack of detail in defining this indicator has kept it from being applied in state reports as being of equal importance with other norms of water and sanitation rights. (246)

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The Committee has increasingly focused on individual affordability as an indicator of economic, social, and cultural rights; (247) however, this normative focus has not borne itself out in the water and sanitation content of state reports. (248) Blunting human rights debates on the privatization of water and sanitation systems, (249) General Comment 15 largely skirted issues of affordability in the context of protecting individuals from human rights interference by private actors. (250) Despite subsequent UN efforts to address tariff setting for water and sanitation, (251) states have only vague indicators of affordability by which to consider the "maximum available resources" necessary to progressively realize water and sanitation and to report on these financing and budgeting issues to the Committee. (252)

In the absence of this necessary detail on obligations to realize individual affordability, states have largely shirked responsibility for reporting on water and sanitation financing and shifted their reporting on affordability to address international assistance and cooperation, (253) wherein developing states are far more likely to discuss international assistance for water and sanitation facilities than to discuss individual affordability of water and sanitation services.

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Reflecting this focus on the extraterritorial obligations of developed states to realize water and sanitation rights in the developing world, developing states came together in the 2010 UN General Assembly Resolution to:
   Call[] upon States and international organizations to provide
   financial resources, capacity-building and technology transfer,
   through international assistance and cooperation, in particular to
   developing countries, in order to scale up efforts to provide safe,
   clean, accessible and affordable drinking water and sanitation for
   all.... (254)


While this language on "international assistance and cooperation" was eliminated from subsequent resolutions in the UN Human Rights Council, (255) developing states have continued to focus their water and sanitation reporting on international assistance. (256) Leading to detrimental inconsistencies in state reporting to the CESCR on national financing and individual affordability, (257) additional detail on affordability obligations would provide the clarity needed to develop standard indicators on the national funding necessary to implement obligations for the rights to water and sanitation. (258)

2. Public Health Impacts

As water, sanitation, and hygiene (referred to collectively as "WASH") are underlying determinants of public health, rights to water and sanitation are thought to be derivative of the right to health. (259) Yet, if water and sanitation rights arise out of obligations under the right to health, this is not clear in state reports. Where the development of an independent right to water in General Comment 15 has led, conversely, to an overall decline in national focus on the health implications of inadequate WASH, state reporting on such intersectional rights (260) (at the intersection of the right to health and rights to water and sanitation) has faded over time and lacked consistency across states.

Prior to the General Comment 15, states reported much of their water and sanitation information under the right to health, with the 1991 Reporting Guidelines requesting state reporting under the right to health on "population access to safe water." (261) The CESCR's 2000 General Comment 14 on the right to health defined "determinants of health" in a way that drew specific attention to water and sanitation:
   The Committee interprets the right to health ... as an inclusive
   right extending not only to timely and appropriate health care but
   also to the underlying determinants of health, such as access to
   safe and potable water and adequate sanitation, an adequate supply
   of safe food, nutrition and housing, healthy occupational and
   environmental conditions, and access to health-related education
   and information, including on sexual and reproductive health. (262)


However, followed shortly thereafter by the CESCR's 2002 General Comment 15 on the right to water, health indicators in the context of reporting on water and sanitation rights decreased by over 23 percent between 1999-2002 and 2008-2010, with the development of an independent right to water diverting attention from WASH determinants of health and leading to an overall decline in state focus on the health implications of inadequate water and sanitation.

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It is only after the 2010 UN General Assembly Resolution that state reporting on the interrelationship between health and water and sanitation returns to pre-2002 levels. In particular, where the content of sanitation obligations was thought to remain weak in the wake of General Comment 15, (263) it appears that the UN General Assembly's declaration--joining water and sanitation into a singular, composite human right (264)--and the Committee's Statement on the Right to Sanitation have finally overcome the weaknesses of previous normative advancements through the UN human rights system and reversed a steady decrease in state reporting on sanitation issues. (265)

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Title Annotation:IV. Evolution of Water & Sanitation in State Reporting A. Changes in Human Rights Implementation into B. Development of Human Rights Norms, p. 176-203
Author:Meier, Benjamin Mason; Kim, Yuna
Publication:Duke Journal of Comparative & International Law
Date:Sep 22, 2015
Words:4364
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