The right to safe water in Southeast AsiaDr Sam Geall, Dr Mohamad Mova AlAfghaniCover: Collecting water from a lake, Minnanthu, Bagan, Myanmar (Alamy)The programme “Regional Asia and the Pacific Programme on Human Rights and Sustainable Development (2017-2021)” implemented by Raoul Wallenberg Institute of Human Rights and Humanitarian Laws (RWI), in collaboration with local partners, became operational in 2017. The programme aims to contribute to a just, inclusive and sustainable development in the region through mutually reinforcing protection of human rights, gender equality and the environment, by means of three mutually inter-linked strategies:1. Strengthening knowledge on connections between human rights, gender equality and environment in the region, aiming to clarify context specific challenges and opportunities and to inform and influence policy, practice and discourse.2. Strengthening multi-sector synergies, pursuing constructive collaboration and efficient, inclusive and rights-based action towards SDG targets, building bridges and offering platforms for mutual exchange, and;3. Promoting accountability in relation to programme topics for all in society, including for cross-border violations and actions of private actors, and adequate measures for marginalised and discriminated groups.China Dialogue is a UK registered charity, with offices in London and Beijing, that researches, writes, commissions, edits and publishes news, reports and analysis of climate change and environmental affairs, with a special focus on China, stimulating the exchange of information and ideas in multiple languages between readers in diverse geographies. AUTHORSDr Sam Geall is Executive Editor of China Dialogue, Associate Fellow at Chatham House and Associate Faculty at University of Sussex. He has a PhD in Social Anthropology from the University of Manchester, and edited China and the Environment: The Green Revolution, published by Zed Books in 2013.Dr Mohamad Mova Al'Afghani is Director of the Center for Regulation Policy and Governance (CRPG) and Lecturer at Universitas Ibn Khaldun, Bogor, Indonesia. He received a PhD in Water Law from the University of Dundee, UK.ACKNOWLEDGEMENTSThe authors are grateful to Sudeshna Thapa, Victoria Taylor-Philip and Johanna Gusman for useful comments on earlier versions of this report. The authors would also like to thank Malin Oud at the Raoul Wallenberg Institute for her useful inputs throughout the research process. Finally, the authors wish to thank Camilla Munkedal, Ned Pennant-Rea, Sophie Bauer and Zhang Ye at China Dialogue and Victor Bernard at the Raoul Wallenberg Institute for providing support in research and design and editorial assistance. However, the authors remain fully responsible for the limitations of the final text and for the views expressed in it. The views are not attributed to the Swedish Government, whose financial support is gratefully acknowledged. The right to safe water in Southeast AsiaDr Sam Geall, Dr Mohamad Mova AlAfghaniContentsExecutive summary . 4I. Introduction . 7What is the right to safe water? . 7Global recognition of the right to safe water . 7Interpretation of the right to safe water .10Water quality: What is safe and clean? .11II. Right to safe water: Duties of states and responsibilities of businesses . 15Duties of states .15Duty to respect the right to safe drinking water . 17Duty to protect the right to safe water .17Duty to fulfil the right to safe drinking water .20Responsibilities of businesses .21Responsibility to identify and assess . 22Responsibility to prevent and mitigate . 23Account for efforts to address impacts on human rights . 24III. Realisation of the right to safe water: Experiences from ASEAN . 27Water services . 28Sanitation . 29Water pollution . 31Mining pollution .33Climate change . 35Transboundary rivers . 35Adaptation . 37The right to safe water in ASEAN member states . 37IV. Conclusions and recommendations . 41Glossary . 43Endnotes . 44Bibliography . 534 | CHINA DIALOGUETHE RIGHT TO SAFE WATER IN SOUTHEAST ASIAExecutive summaryThe human right to safe water is fundamental to leading a life with dignity.1It is indivisible from, and the foundation for, achieving many other internationally recognised human rights.2Yet approximately 844 million people live without access to safe water worldwide.3Around 110 million of those people live in Southeast Asia (hereafter ASEAN). Minimum requirements for safe drinking water are defined by the World Health Organization as: water that does not represent any significant risk to health over a lifetime of consumption, and that is free of microbial pathogens, chemicals and radiological substances.4Water supply should also be sufficient and continuous for individuals personal and domestic uses, and accessible to everyone, without discrimination. While the human right to water does not require that it be made free, water does need to be affordable. States are duty-bound to take all necessary steps to ensure the right to safe water, including by protecting it from contamination with hazardous substances and wastes even if a water system is privately owned. Businesses have a corresponding responsibility to respect the right to safe water, in their products, supply chains and beyond. Information about water quality, including potential threats such as pollution, must be available and accessible. Businesses should seek to mitigate impacts on access to water, and to help ensure access to effective remedies. In 2012, the ASEAN Human Rights Declaration explicitly guaranteed “the right to safe drinking water and sanitation”, but few ASEAN member states include the right to water in law. Many states have severe problems with water pollution. Rising stresses on the systems needed to ensure the right to safe water include: population growth, urbanisation, rapid industrialisation, and climate change which poses disaster risks, such as cyclones and saline intrusion from sea-level rise. In many places, water services provision is inadequate and unequal, with disparity of access between urban and rural areas. Water privatisation has, in some cases, led to poor coverage and high prices. Sanitation is also under-financed in many cases, and provided in an unequal way. Water quality in Southeast Asia is under threat from many sectors including agriculture, manufacturing and waste management, due to insufficient wastewater treatment, chemical overuse and other factors. Mining is a particular problem, including from acid mine drainage, heavy OCTOBER 2019 | 5metal contamination and leaching, processing chemicals pollution and erosion and sedimentation. Climate change and the need for adaptation are of growing importance. Many countries in ASEAN are vulnerable to disaster risks, and exposed to sea-level rise and cyclone activity. The Himalayan glaciers are warming far faster than average,5threatening the future of the Mekong and other international rivers, making transboundary water governance and large hydropower projects all the more potentially troublesome. Deltas are particularly at risk. In the Mekong delta, for example, rice-based farming accounts for more than 65% of total freshwater demands, but water availability is increasingly threatened by complex and interrelated problems, including over-exploitation of groundwater, climate change, rising sea levels, industrial pollution, and over-use of pesticides and fertilisers.Underpinned by government recognition and support of the right to safe water, best practices for addressing these myriad problems can include: innovative technological approaches such as solar desalination;6remunicipalised water services; community-led total sanitation (CLTS); greater circularity and efficiency in environmental management of industries like extractives; and better and adjusted investments, operations and maintenance around hydrological infrastructure, to adapt to climatic change.IntroductionIAaron May/FlickrTHE RIGHT TO SAFE WATER IN SOUTHEAST ASIACHINA DIALOGUE | 7All living organisms, from cyanobacteria to people, need water to survive. Clean water is essential to human health.7Yet in Southeast Asia, many states have severe problems with untreated wastewater, solid waste, pesticides and heavy metals being released into water supplies. Rising populations, urbanisation, rapid industrialisation and climate change all compound the threats to safe water. This report takes a closer look at the right to safe water in the ASEAN region, and sets out conclusions and recommendations for policymakers, civil society, business and others. It begins by tracing the emergence of the right to water at the global level. Then it examines what safe water means under international human rights standards, and the implications for states and businesses regarding water quality. The report then turns to the situation in ASEAN member states, focusing on the extent to which there is national recognition of the right to water and what challenges it faces in implementation. It finds that several states in ASEAN are lagging behind on the realisation of the right to safe water, and identifies problems, such as poorly managed water privatisation, under-financed sanitation, inadequate wastewater treatment and failures in law enforcement. It concludes with selected recommendations for ASEAN countries, including constitutional and legislative recognition of the right to water, stronger health protection standards in law for water quality, better support for sanitation and best practices in climate adaptation. What is the right to safe water?States, regional and global bodies have increasingly recognised the right to safe water and seen it as indivisible from many other human rights. Today, its legal basis is well established,8and some believe it should be considered customary international law.9This section charts how the right to safe water came to be recognised by the global community, and its links to other human rights.All human rights are “indivisible, interrelated and interdependent.”10Those particularly closely connected to the right to safe water11include the rights to: life, work, the highest attainable standard of health, safe and nutritious food,12adequate housing,13and education.14None of these can be realised without access to safe water. For example, an aspect of the right to health includes environmental hygiene, which encompasses the prevention of threats to health from toxic and otherwise hazardous water.15Unclean water or inadequate sanitation often leads to illness such as cholera, one of the largest causes of death in children under five.16And the contamination of water with toxic lead is associated with learning disabilities and behavioural disorders, affecting the rights to education and to the enjoyment of the highest attainable standard of health. 17Global recognition of the right to safe waterThe right to safe water originates in the right to an “adequate standard of living” enshrined in the Introduction8 | CHINA DIALOGUETHE RIGHT TO SAFE WATER IN SOUTHEAST ASIA1948 Universal Declaration of Human Rights, Article 25(1).18This includes the right to adequate food, clothing and housing, and carries the assumption that water, like air, is freely available to all.19A number of UN conventions, declarations and resolutions entrenching the right to safe water have since been passed. They are presented in the following table and described in more detail after that.DATE NTERNATIONAL RECOGNITION 10 December 1948Universal Declaration of Human RightsThe right to a standard of living adequate for health and wellbeing (Article 25)16 December 1966International Covenant on Economic, Social and Cultural Rights (ICESCR)The right to an adequate standard of living that includes food, clothing and housing (Article 11) and the right to the highest attainable standard of physical and mental health (Article 12)18 December 1979Convention on the Elimination of all Forms of Discrimination Against WomenThe right to adequate living conditions, specifically in relation to water supply (Article14(2)(h)20 November 1989Convention on the Rights of the ChildThe right to clean drinking water and adequate food to combat disease and malnutrition (Article 24(2)(c)11 August 2000CESCR General Comment No. 14Interprets Article 12 of the ICESCR, acknowledging that access to safe and potable water is a prerequisite for achieving the highest attainable standard of health26 November 2002CESCR General Comment No. 15Interprets the ICESCR enshrining the right to safe water in international law. The right to water is indispensable for leading a life of human dignity and is necessary for realising other human rights (Article 1(1)24 January 2007Convention on the Rights of Persons with DisabilitiesTo ensure equal access for people with disabilities to clean water services (Article 28(2)(a)2 October 2007UN Declaration on the Rights of Indigenous PeoplesTo maintain and strengthen their distinctive spiritual relationship to water (Article 25) and obtain their free and informed consent prior to any project affecting resources, particularly water (Article 32(2)28 July 2010UN General Assembly Resolution 64/292Formal recognition, for the first time, of the right to water and sanitation, and acknowledgment of clean drinking water as essential to the realisation of all human rights. 30 September 2010Human Rights Council Resolution 15/9Affirms that the rights to water and sanitation are part of existing international law and legally binding upon states. Figure 1 | History of the right to safe waterIntroductionOCTOBER 2019 | 9It was in 1979 that UN rights conventions began to make explicit reference to water. Article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination against Women20specifically outlines that states shall e