An abundance of material has been produced attempting to define and analyse the right to water. When reading government reports, UN resolutions, guidelines, academic articles, industry standards and media publications, some present the right of water as being a legally binding right, others as a moral responsibility and others as not giving rise to any real obligations in practice.

The right of access to water has been recognised to be explicitly contained in certain provisions of international conventions as being an integral part of ensuring rights to health, hygiene and sanitation of people. Firstly, a number of treaties contain references to safe drinking water and sanitation. For example, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) states:

Article 14 (2)

States parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular shall ensure to women the right:


(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications . [emphasis added]
The Committee on the Elimination of Discrimination against Women interpreted this as “[…] obliges States parties to take all appropriate measures to ensure adequate living conditions, particularly housing, sanitation, electricity and water supply, transport and communications, all of which are critical for the prevention of disease and the promotion of good health care”.
The Convention on the Rights of the Child (CRC) (1989) states:

Article 14

1. States parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health …

2. States parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, (…) the provision of adequate nutritious foods and clean drinking water (…) [emphasis added]
The Committee on the Rights of the Child considered that under this provision, “states parties have a responsibility to ensure access to clean drinking water, adequate sanitation, appropriate immunization, good nutrition and medical services, which are essential for young children’s health” . Similarly, the African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa respectively declare that:

Article 14

2. States parties to the present Charter shall undertake to pursue the full implementation of this right and in particular shall take measures:
(c) To ensure the provision of adequate nutrition and safe drinking water [emphasis added]

Article 15: Right to Food Security

States parties shall ensure that women have the right to nutritious and adequate food. In this regard, they shall take appropriate measures to:

(a) Provide women with access to clean drinking water, …[emphasis added]
Treaties, whether in the form of Declarations, Covenants, Agreements or Conventions, are all agreements whereby the states participating legally bind themselves to carry out certain obligations . Although legally binding, this raises a number of practical limits. International treaties do not bind states which are not a party to the treaty.

For example, Iran, Sudan, Nauru, Somalia, Palau, Tonga, and the United States have not ratified the Convention on the Elimination of All Forms of Discrimination against Women, and the Democratic Republic of the Congo, Sahrawi Arab Democratic Republic, Somalia and the Sudan have not African Charter on the Rights and Welfare of the Child.

Most of these countries are also major human rights violators. Also, treaties are legally efficient insofar as the obligations they affirm are effectively monitored and enforced, and the ability of the States to comply with these obligations. The afore-mentioned treaties explicitly refer to right of access to water as essential in upholding rights to adequate living conditions, the enjoyment of life, health, etc. However the scope and content to the right to water is not described. Perhaps the most important and detailed definition of the scope and content on the right of access to water comes from General Comment 15 of the UN Committee on the International Covenant on Economic, Social and Cultural Rights (2002).

The International Covenant on Economic, Social and Cultural Rights establishes a right to adequate standards of living (article 11) and a right to health (article 12) . Comment no. 15 enunciates specific standards concerning the right to water including “the right of everyone to sufficient, continuous, safe, acceptable, physically accessible and affordable water for all based on non-discrimination and adequate access to information concerning water issues” .

The right to water is therefore clearly implicit in the Covenant. The Committee also, and most importantly, provides details on the normative content of the right to water, as containing both “freedoms and entitlements”. Freedoms include the right to maintain access to water, freedom from interferences such as arbitrary disruptions and contamination. There are also entitlements to water supply management that provides equal opportunity of access to water . The Comment goes on to define the “availability”, “quality” and “accessibility” required. General Comment 15 provides a strong authority for determining states’ obligations regarding the right of access to water. Several States have agreed and recognised this right to water as being part of their obligations under the Covenant on Economic, Social and Cultural Rights.

The right of access to water is both explicitly and implicitly contained in international treaties binding on states which have ratified them. However it can be argued that international treaties fail to provide a clear, precise and detailed statement of state obligations regarding this right in a way that it can be implemented and enforced in practice. Comment 15 addressed the right to water directly, recognising it as being implicitly contained in the ICESCR and stating states obligations.

We now turn to other international instruments on the right to water. Principles, Recommendations, Guidelines, Standards and Declarations and have no binding legal effect, but have a strong persuasive power and provide practical guidance to States as to the international standards expected .

The United Nations Principles for Older Persons establishes that:

Independence
1. Older persons should have access to adequate food, water, shelter, clothing and health care through the provision of income, family and community support and self-help .[emphasis added]

Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national security (FAO) also state that:

3.6 In their poverty reduction strategies, States also should give priority to providing basic services for the poorest, and investing in human resources by ensuring access to primary education for all, basic health care, capacity building in good practices, clean drinking water, adequate sanitation and justice …[emphasis added]

References to an obligation from the States to provide access to water are found in standards or principles regarding the treatment of prisoners . Again, the right of access to water is included in instruments aiming to protect the right of specific groups (old people, the poor, prisoners…), however there are no standards proclaiming the right to water to people in general.

Aside from implicit and explicit references to the right to water in blinding and non-binding international law instruments, there is also the international political process of acknowledging and promoting the right to water expressed in international law. This political process does not impose legal obligations on states; however it can lead of powerful political pressure on states to honour their commitments. The U.N. General Assembly formally recognized “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights” on July 28, 2010, urging the international community to "scale up efforts to provide safe, clean, accessible and affordable water and sanitation for all".

In September 2010, the UN Human Rights Council affirmed for the first time that “the right to water and sanitation is derived from the right to an adequate standard of living, which is contained in several international human rights treaties” . 122 countries voted in favour of the resolution, and 41 abstained, including the US, UK and Canada.

The recent resolution has been widely covered by the media as an important historical step towards the protection of the right of access to water. However, what impact will this have on the right to water? Is the right to water formally recognised as a fundamental human right? The right to water is referred to in binding international treaties as well as in international principles and standards, which establish it as necessary to further certain fundamental human rights (ie, the right to food, health, life…) or to protect rights of certain groups of people (children, women, the poor…). Access to water is recognised as a human right in the international political arena, which does not entail legally binding obligations. It therefore seems that today, there is no international legally binding recognition of the right to water as a fundamental and individual human right in itself.