The Human Right to Sanitation: A Critique on the Absence of Environmental Considerations

• Published date: 01 April 2015
• Date: 01 April 2015
• DOI: http://doi.org/10.1111/reel.12088
• Author: Loretta Feris

The Human Right to Sanitation: A Critique on the

Absence of Environmental Considerations

Loretta Feris*

As approximately 2.6 billion people are without access

to basic sanitation, the recognition of a human right to

sanitation represents an important development in

international human rights law. The right, derived

from Article 11 (the right to an adequate living) of the

International Covenant on Economic, Social and Cul-

tural Rights, has been framed as the human right to

safe drinking water and sanitation. However, what

has been largely absent in both the emergence of the

right to sanitation in various international law instru-

ments, as well as the conceptualization of it over the

last decade, is a consideration of the impact of inad-

equate sanitation on the natural environment and the

associated infringement of environmental rights. This

article problematizes the scant acknowledgement of

environmental considerations in the framing of the

right to sanitation and argues that a multifaceted

approach to the right to sanitation must integrate

environmental concerns.

INTRODUCTION

The disposal of human wastes is a subject normally buried in

euphemism and avoidance – at least in public. Privately,

every single person on the planet is intimately concerned on

a day-to-day, even hour-to-hour, basis with the need to

relieve themselves in a congenial place and fashion. The

physiological necessity of excretion cannot be averted, even

if it cannot be spoken of.1

In July 2010, the United Nations General Assembly

(UNGA) recognized a right to sanitation and acknowl-

edged that the right to safe and clean drinking water

and sanitation is a human right that is essential for the

full enjoyment of life and all human rights.2This repre-

sents an important moment in the global recognition of

the right to sanitation, given that worldwide more than

2.6 billion people do not have access to basic sanita-

tion.3In addition, a handful of States have also recog-

nized the right of sanitation in their respective

constitutions, either expressly, inclusive of the right to

water or inclusive of another right such as the right to

housing or the right to life.4These developments are all

part of the global emergence of a rights-based approach

to sanitation. While the UN resolution calls on govern-

ments to meet a number of obligations vis-à-vis this

right, determining the legal content and consequences

of it in international and domestic law still requires

substantial effort.

This article investigates the development of the right to

sanitation in international law and examines the rights-

based approach to it. The article begins by revisiting the

definition of sanitation and reflects on the absence of

environmental considerations in the definition. It then

examines the human rights discourse on sanitation and

reflects on the evolution of the right to sanitation. It

problematizes the discernible absence of environmen-

tal considerations in the framing of the right. Next, it

considers the link between environmental rights and

the right to sanitation, arguing that the right to sanita-

tion cannot be divorced from the environmental

impacts of sanitation and that the relationship between

the right to sanitation and environmental rights must

be acknowledged.

SANITATION DEFINED: THE

ABSENCE OF THE ENVIRONMENT

Descriptions and definitions of ‘sanitation’ range widely

and are linked to engineering, public health and, to a

lesser extent, to environmental sustainability. While

some definitions narrowly focus on the removal of

excreta, others take a broader view and include all

waste-related matters, including solid waste disposal as

well as personal hygiene.5Overall, definitions take a

*Corresponding author: Loretta Feris, Institute for Marine and Envi-

ronmental Law, Faculty of Law, University of Cape Town,

Rondebosch 7702, South Africa. Email: Loretta.feris@uct.ac.za

1M. Black and B. Fawcett, The Last Taboo: Opening the Door on the

Global Sanitation Crisis (Earthscan, 2008), at 1.

2The Human Right to Water and Sanitation (UNGA Resolution A/64/

292, 28 July 2010).

3Ibid., at paragraph 2.

4For a list of States that guarantee the right to sanitation see: <http://

www.righttowater.info/progress-so-far/national-legislation-on-the-

right-to-water/>. See also WASH United, Freshwater Action Network

and WaterLex, The Human Right to Safe Drinking Water and Sani-

tation in Law and Policy: A Source Book (2012).

5See, e.g., Evans who argues for a broad view of sanitation and

states: ‘Most professionals would agree that “sanitation” as a whole is

a “big idea” which covers inter alia:

bs_bs_banner

Review of European Community & International Environmental Law

RECIEL 24 (1) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12088

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

16