Water,Sanitation,and Hygiene (WASH) in Ethiopia: An International Human Rights Framework

Abstract

Human rights are the legal claims that individuals have on society on the basis of being human. It is surprising then that water, a basic necessity to life, has only been explicitly recognized as a human right since 2002 by the Committee on Economic, Social, and Cultural Rights (CESCR) and since 2010 by the United Nations General Assembly. Recognition as a human right makes its fulfillment a duty of the state to its citizens, obligating steps towards implementation accountable to international law. Access to safe drinking water, adequate sanitation, and hygiene (WASH) would alleviate 10% of the global disease burden. The magnitude of its effect on health is seen clearly in Ethiopia where 60% to 80% of communicable diseases are attributable to limited access to WASH. Ethiopia has achieved MDG 7c for access to clean water supply and has made good progress on ending open defecation. However, its progress on handwashing lags far behind despite its cost-effectiveness. This is partly because of the differences in the codification of the rights to water, sanitation, and hygiene individually. This paper will examine the implications of the international law framework for WASH implementation in Ethiopia.

Practitioner Points

• International human rights, adopted into national law, outline enforceable obligations of the state to its citizens.

• The legacy of the codification of water, sanitation, hygiene (WASH) human rights in Ethiopia’s present day provides an example for replicating the progress towards WASH targets for other states and communities.

• International human rights provides legal frameworks for securing the right to WASH at the state level.

The Road to Human Rights

State-citizen relations have had dramatic shifts throughout history. As philosophers began to champion the idea that all human beings have the capacity for independent reason, these human capacities came to be considered the basis for natural rights. Natural rights were a necessary first step, with the Magna Carta in 1215 codifying individual rights, but the journey to human rights would be long. While natural rights sought to limit the power of the ruler and protect individual rights from infringement, they accomplished little in the way of outlining specific obligations of the state to its people. The next big advance came through the social medicine movement during WWII. The movement shed light on the social determinants of health and the role of policy reforms in addressing inequality to improve public health.

Out of the shared horror of WWII, nations united to ensure that such atrocities would not happen again. This was captured in President Franklin Delano Roosevelt’s inspirational speech on the four freedoms he envisioned for the postwar world (Meier & Winkler, 2020). While the first three of these four freedoms mimic the freedom from government interference promoted by natural rights, freedom from want requires much more on the part of the State. The government would be required to positively create the circumstances that would allow its citizens to take full advantage of their other freedoms. Out of these postwar discussions came the explicit commitment to “promote respect for human rights” and establish an international body to unite states in this goal (United Nations, 1945, Charter of the United Nations, 1945). The United Nations (UN) Charter established human rights as one of the fundamental principles of the organization. Despite this commitment, health was not named directly anywhere in its charter. Continued discussions on the matter eventually led to the establishment of the World Health Organization (WHO) under the UN and an international commitment to the human right to health. The preamble of the WHO constitution makes bold claims for health by expanding the vague definition to “the enjoyment of the highest attainable standard of health” and health itself as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity” (WHO, 1946, Preamble). This was tremendous progress on the international stage. States would now also be held responsible for advancing public health through the social determinants of health.

Discussions about the social determinants of health had been taking place for a century, since 1848, by this time. In 1948, the Universal Declaration of Human Rights (UDHR) was adopted, with health as a central component (United Nations General Assembly, 1948). Much groundwork had been laid for this monumental document allowing it to include a very expansive definition of the human right to health. The UDHR summed up the need for this holistic view of public health, asserting that “everyone has the right to a standard of living adequate for health,” and emphasizing that the right to health must also include the right to enjoy the necessary circumstances to produce health. This marked a fundamental shift, at least on paper, in the idea that States have obligations to their people.

A significant accomplishment, however, the UDHR did not legally obligate states to the commitments they made. As “soft law,” the UDHR created general consensus around rights that would then need to be enforced by “hard law.” The UN General Assembly attempted to create one unifying document, but Cold War ideological differences resulted in two: the

International Covenant on Economic, Social, and Cultural Rights (ICESCR), supported by the Soviet Union and its allies, and the International Covenant on Civil and Political Rights (ICCPR) supported by the U.S. and its allies. These ideological differences revealed that, although the right to health had been defined in the UDHR and the WHO Constitution, states were wary of binding themselves legally to such expansive obligations.

The “New” Human Right of Water and Sanitation

Children all over the world learn that the basic necessities of life are food, water, clothing, and shelter. It is surprising that international authorities long neglected to acknowledge one of these basic necessities as a human right. Perhaps the very “basic” nature of the need for water was a disadvantage, making it easy to overlook as a topic in need of discussion. Unfortunately, what is intuitive does not always translate into what is legally binding. This is why human rights are important, to interpret international law into tangible State obligations.

An increased sensitivity to social determinants gave environmental advocates the platform to promote water regulation for public health outcomes, leading to an assertion by the UN that “all people have the right to an amount and quality of water needed to meet their basic needs” (United Nations, 1977). Although this declaration was not binding on States, the history of international law tells us that consensus and norms around an issue serve as a good framework for future codification of a human right.

The cross-cutting principles of human rights have been instrumental in using existing international treaties for the realization of “new” rights (Gostin & Meier, 2020). One of these principles, the principle of non-discrimination, is applied to water in two international treaties: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) (UN General Assembly, 1979, 1989). CEDAW acknowledges the disproportionate impact that lack of access to clean water has on women and girls, particularly rural women who have to devote much of their day to fetching water at the cost of education or occupation. The CRC acknowledges the disproportionate impact that diseases resulting from contaminated water have on children. These two covenants leveraged existing human rights principles to expand the right to health to have implications for water. This is the thread of water’s history in international human rights discourse. Civil society organizations and human rights advocates have used creative tools to move toward the proper recognition of water, sanitation, and hygiene (WASH) under international human rights, granted at differing rates for each WASH component. Another step came in 2002 with the adoption of the CESCR’s General Comment 14 on “The Right to the Highest Attainable Standard of Health,” requiring the state to fulfill specific positive rights for its citizens. The committee’s next General Comment in 2002 more explicitly states the right to water addressing both the quantity and quality needed for the realization of other rights and an adequate standard of living for health (CESCR, 2003). It is important to pause and consider the significance of these advancements in human rights through the use of general comments. In their conception, general comments were meant to be used as a tool to interpret the existing content of the treaties. However, because the covenant already included the right to health and set a standard of state obligation for fulfilling specific rights, General Comment 15 applied these assertions to water. The Independent Expert for this right observes how the brief mention of sanitation compared to the extensive coverage of water contributed to a neglect in addressing sanitation issues as compared to the right to water (Benedek et al., 2020). These examples demonstrate innovative ways to use legal tools to encourage states to apply broad consensus of human rights principles to specific rights for their citizens.

With Water, Sanitation, and Hygiene consolidated into the term WASH, the issues grew into a powerful sector whose advocacy pushed the UN General Assembly to adopt a Resolution on the Human Right to Water and Sanitation in 2010 and further defining them as two separate rights in 2015.

Translating International Law to National Law—Case Study: Ethiopia

International law obligates states to protect, respect, and fulfill human rights through the principle of progressive realization according to national resources (Tobin & Barrett, 2020). The case of water is interesting because although Ethiopia is severely limited in financial resources, water itself is a natural resource that it possesses in abundance. However, domestic water regulation has not been strong enough to use this resource well. Attention to water in Ethiopia’s constitution has had dramatic shifts over the country’s history. The first Constitution in 1931 makes no mention of natural resources. This was Ethiopia’s first written constitution since the country’s formation. The document was intended to replace the traditions and religious leaders that had long functioned as the rule of the land. After his coronation in 1930, Emperor Haile Selassie I shocked the world as the first absolute monarch to voluntarily initiate the drafting of a constitution. However, the contents of the constitution, which describe the emperor as “sacred” and possessing “indisputable” powers, make sense of this action by the emperor. The Revised Constitution in 1955 addresses the regulation and conservation of natural resources including water. Unsurprisingly, the natural resources within the Empire’s boundaries were classified as State domain. However, in the same article, the 1955 Constitution asserts the duty to protect natural resources such as water “for the benefit of present and future succeeding generations of the Ethiopian people” (1955 Revised Constitution of Ethiopia, 1955). Even more impressive is that the constitution places this duty explicitly on the government, requiring it to take all necessary measures to fulfill this duty. This language is not far from what would eventually become enshrined in international law as human rights. The third constitution in 1987 establishes who governs water bodies and the Water Resources Utilization Proclamation in 1994 focused on allocating control of water resources, showing the prevailing concern related to water at the time. The 1995 Constitution with the establishment of the Federal Democratic Republic of Ethiopia (FDRE) was a huge step forward, declaring water a public property of the state and peoples of Ethiopia (Brems, 2007). This domestic law illustrates the international debate at the time on whether to view water as an economic or a public good. Although the sentiment seems more in line with human rights, in practice, common ownership created the difficult task of coordinating across federal and regional governments for the regulation of water. This is a dominant theme throughout Ethiopia’s history with WASH. This article takes the perspective that political will seems to outpace the country’s administrative and institutional capacity. Eventually, the Ethiopian Water Resources Management Policy in 2000 moved to an integrated approach leaving the administration of water sources within regional boundaries to the regional governments and those that cross-boundaries to the federal government (The Open University, n.d.). This shift shows strong commitment to the first target of SDG 6 (SDG 6.5.1) which is the implementation of integrated water resource management (IWRM) at all levels (United Nations). Again, this reflects the political will and commitment to international standards that has characterized the FDRE.

The 1995 FDRE Constitution shows effective translation of international treaties into domestic law. Its articles on water as an integral part of a clean and healthy environment reflect human rights language affirming citizens as rights-bearers and the state as a duty-bearer. This is a crucial step to ensuring that domestic laws align with international human rights standards. However, the gap between international and national law is not the only coordination needed to see the full implementation of WASH. The creation of the Democratic Republic created a decentralized governance system granting regional governments a good deal of autonomy in policy implementation. It will be important to assess whether federal political will is reflected at the regional government level.

However, through the process of establishing human rights, it has become clear that political will often ends at agreement with high-level principles and even some adoption into domestic law. While it is important for State leaders to affirm and accept these rights as human rights, this is not the end of their duty but rather just the beginning. The following sections describing the recent status of various WASH components in Ethiopia highlight the need to use legal tools to apply human rights to specific domestic policies. This section also describes how differences in the codification of rights has led to differences in current progress among water, sanitation, and hygiene.

Service Delivery

Human rights principles establish universal standards for State obligation. However, a rights-based approach must have domestic context in order to effectively guarantee human rights to its population. The burden of disease attributable to water-borne diseases as well as the disproportionate impact of shortage of WASH services in Ethiopia is concentrated in rural areas. The attributes of availability and accessibility, the obligation to fulfill these human rights, as well as the principle of non-discrimination requires the Ethiopian government to pay special attention to the provision of WASH services in rural parts of the country. Ethiopia has made significant progress in this obligation through its Health Extension Program. The program has trained over 42,000 community health extension workers to deliver care and health education at the household level (USAID, n.d.). In addition to maternal and child health, WASH has been a central topic of workers’ communication with families. Since individual behavioral change is also a necessary part of improving sanitation and hygiene conditions, delivering this information is an integral part of fulfilling this obligation.

Safe Drinking Water

SDG 6, to which the Ethiopian Human Rights Commission echoes the country’s commitment, has set the goal of universal access to safe and affordable drinking water (Ethiopian Human Rights Commission, 2022; United Nations Ethiopia, n.d.). This commitment has resulted in real progress. Lifewater highlights data from the WHO/UNICEF Joint Monitoring Program (JMP), which tracks state progress toward the WASH SDG targets, and reports that the percentage of the population relying on unsafe drinking water has fallen from 75% in the year 2000 to 31% in 2015. An additional 28% of the population is estimated to have limited access because of the need to travel 30 minutes to retrieve the water (Lifewater, 2019). That means that a total of approximately 59% of the population still lives with limited or no access to safe and affordable drinking water. This is a staggering statistic, but the progress in such a short time is also impressive. Fulfilling the human right to safe drinking water also involves addressing the determinant of far traveling distances by bringing water services closer to the home.

Sanitation and Hygiene

The State commits, in its constitution, to the duty to create a safe and healthy living environment for all of its citizens (Constitution of the Federal Democratic Republic of Ethiopia, 1995). SDG 6.2 addresses sanitation and hygiene and ending the practice of open defecation. Waste from this practice often contaminates drinking water, exposing people, and especially children, to water-borne diseases. The percentage of the population practicing open defecation fell from 80% in 2000 to 22% in 2017, due to the construction of latrines in many communities (Lifewater, 2019).

Another measure of hygiene according to the JMP is the availability of handwashing facilities with soap and water. Interestingly, the JMP does not have country data for this indicator before 2010. The data for the period 2010 to 2020 shows that the access to handwashing has remained almost exactly the same with 41% of households having no hand washing facility and 51% lacking reliable water and soap, leaving about 8% of the population with access to a handwashing facility with water and soap (Lifewater, 2019). This is a stark contrast to the tremendous progress Ethiopia has made in securing access to safe and affordable drinking water and ending open defecation (Kutane, 2015). Of the 92% of the population lacking access to handwashing facilities with soap and water, 80% live in rural areas WHO/UNICEF (2021). This disparity must be tackled in order to act in accordance with the human rights principle of non-discrimination. The large discrepancy between water, sanitation, and hygiene issues is because the international law community was slow to recognize the right to water, but even slower to recognize sanitation and hygiene. The first Independent Expert on the human rights to water and sanitation highlighted how sanitation has been neglected in international law compared to water, calling it the “poor cousin of water” (Meier & Winkler, 2020). General Comment 15 lays out specific state obligations for the right to water and the provision of sanitation services. However, it did not recognize a separate right to sanitation. This later commitment to sanitation, and by association to hygiene, could have contributed to slower progress in reaching the handwashing goal. If sanitation was the “poor cousin” of water, hygiene was the distant relative. When hygiene was finally included in the conversation, the focus on menstrual hygiene created attention to other hygiene issues. Assessing the economic impact of handwashing interventions on health outcomes, the Global Handwashing Partnership found that the same health benefits from $11 invested into building latrines and $200 invested into household water supply can be achieved by investing just $3.35 into handwashing promotion (Global Handwashing Partnership, 2017). Under the principle of progressive realization, States are required to work towards fulfilling human rights as their resources allow. Handwashing promotion and construction of handwashing facilities should be a priority for Ethiopia moving forward in order to fulfill the right to hygiene. Although historical discrepancies in the recognition of the components of WASH have put hygiene progress behind, this does not need to continue to be the case. A variety of legal tools exist to expand international human rights to more issues. The principles that formed the basis of the rights to health, water, and sanitation are resources for the international human right to hygiene.

Advocacy

Accountability is a necessary component of the implementation of human rights (Amon & Friedman, 2020). NGOs and other private organizations have largely taken on the role of creating accountability. For example, the Christian charity Tearfund, along with other groups, held a stakeholder forum to hold the government accountable for its progress on its One WASH National Program created in 2013 (Watson, 2015). The program sought to achieve universal (98% of the rural population and 100% of the urban population) access to WASH by 2020. It also set up a Universal Action Plan to increase the percentage of the population washing hands at critical times (before eating and after using the toilet) to 77% (Jiménez, 2021). After underscoring the importance of the issue but the overambitious nature of the plan, Tearfund and its partners were asked by the government to help redraft the plan and its implementation. The process from high-level consensus to nation-level policy to implementation in the provision of services is not a linear process. Systems of accountability are necessary in order to keep this process moving from one step to the next. Civil society and NGOs are ideal for this third-party monitoring role. A State can make broad references to, and assertions of, the rights to health and water in its policies without any real action plan to fulfill these rights. Grassroots organizations are positioned to observe whether real progress is being made in the realization of these rights and demand measurable results.

Litigation

The courts serve to address violations of rights that citizens are entitled to have met. Litigation can serve as a sort of last resort when this system does not work as it should. However, individual litigation is not the most efficient use of a country’s legal system, especially since it often only immediately benefits individuals with the means to participate in litigation. But, when litigation is used as a means to highlight how a specific violation is a neglect of a human right that the State has a duty to ensure under international law, and perhaps also its own constitution, it can be used to advance the implementation of the human right. Ethiopia has been a signatory to both the ICCPR and the ICESCR since 1993 (Brems, 2007).

Both the ICCPR and the ICESCR have reporting procedures to monitor the implementation of human rights. However, only the ICCPR was given a complaint procedure to address violations. The OP-ICESCR is an optional protocol that states can adopt to allow individuals to bring violations of the ICESCR to international courts when they cannot be sufficiently addressed domestically (UN General Assembly, 2008). These cases have the ability to expand the application of these rights by interpreting their content to the specific entitlements that are being said to have been violated (ESCR-Net). This optional protocol has not been adopted by Ethiopia. To its credit, the State has shown strong commitment to international global health standards, adopting much of the language of international governance bodies in its national policy. This could also, in part, be because a significant proportion of its funding for health service provision comes from international donor organizations. This optional protocol is something to consider given the country’s history of being responsive to accountability from international governance bodies and NGOs. Despite the State’s strong commitment to reflecting the spirit of international human rights in its domestic policy, its lack of administrative and institutional capacity does not allow implementation to the extent that political will would support. Thus, because of the seriousness of a human right violation claim, domestic courts might be a more effective route in the short term. In unfortunate cases of human rights violation, bringing justice to the individuals should not be neglected. However, these incidents also present an opportunity to point out the missing domestic policy that permitted the violation of the international human right. Policymakers must recognize the gap between the embodiment of principles and the implementation of actionable policies. In the meantime, domestic courts should use instances of injustice to assert the protection of the violated right in domestic law.

Why Hygiene Matters in International Human Rights Discourse

Maintaining proper hygiene, and especially hand hygiene in context of the WASH sector’s work, is primarily a behavior issue. While access to, and quality of, water and soap are absolutely necessary, they do not solve the issue of inadequate hand hygiene practices. Further, evidence shows that even good knowledge of hygiene practices does not automatically lead to action. This means that global health actors must be committed enough to the cause of hygiene to incorporate social, behavioral change into their program design. This requires examining the specific social and emotional determinants of a local context in order to craft culturally appropriate and acceptable messaging. This takes time and a willingness to go further than the usual work of building latrines and handwashing stations in order to avert the needless preventable deaths resulting from water-related issues annually (CDC, 2022; UNICEF, 2018). The history of WASH in international human rights demonstrates that consensus of its importance does not always result in action. Rather, advocates should continue to use legal tools to convert sentiments to binding obligations.

Looking Forward

Hygiene practices such as handwashing, which is among the most cost-effective and easy to implement, still lag far behind progress for sanitation facilities (Ministry of Health-Ethiopia, 2022). Evidence shows that, contrary to popular belief, access to water and soap are not the primary obstacles to proper handwashing. Promoting good hand hygiene practices requires investment into health promotion and social and behavioral change efforts which address individual motivation as well as environmental enabling factors and barriers. This, however, first requires a recognition of the effects of differential treatment of hygiene under international law. Although less tangible than building infrastructure to improve water access or sanitation facilities, hygiene must be recognized as a pillar for international health. Future research should avoid the common pitfall of conflating the issue of improper hygiene practices with water access. Empowering people with the self-efficacy and motivation to take their health into their own hands is foundational to human rights. This level of investment on the ground in community settings is possible, with the backdrop that all of the components of WASH are a human right.