[OPINION] Water is a human right

The Philippine government has the obligation to provide water for all. Using private companies to fulfill the right to water does not absolve the government of its obligation.

Millions of Filipinos were hit by a water crisis a few weeks ago when Manila Water failed to deliver its usual water supply to parts of Metro Manila and Rizal. People from all walks of life – rich and poor – were thrown into panic and clamored to find clean water for drinking, bathing, sanitation, and other household uses.

On April 24, the Metropolitan Waterworks and Sewerage System (MWSS), the government regulatory body tasked to oversee water privatization in Metro Manila, imposed a P1.13-billion fine on Manila Water for the crisis. Manila Water has replied that it will pay this fine. It also provided “relief” to severely affected customers through a “one-time bill waiver” reflected in the April billings.

The problem, however, is far from over. Manila Water supply interruptions persist, while Maynilad customers are also experiencing an ongoing two-week supply interruption this May.

Now is probably a good time to remind Filipinos that water is a human right. When Filipinos hear the term “human rights,” what immediately comes to mind are civil and political rights, such as the rights to life, not to be tortured, or not to be arbitrarily detained. In the Philippines, water is rarely included in discussions on human rights.

The right to water is guaranteed in international human rights law, particularly the International Covenant on Economic, Social, and Cultural Rights, to which the Philippines is a party. Without water, people would not be able to enjoy other human rights such as the rights to life, health, and an adequate standard of living.

Furthermore, the United Nations (UN) Human Rights Council has a dedicated special rapporteur on the human rights to safe drinking water and sanitation, tasked with conducting investigations and helping to ensure that these rights are protected arouund the world.

Because the right to water is a human right, governments all over the world have the obligation to respect, protect, and fulfill it. Under international law, the Philippine government has the obligation to provide safe, clean, accessible, and affordable water for all. Should a government decide to outsource this service to the private sector, as the Philippines has done by contracting with Manila Water and Maynilad, it effectively becomes responsible for the conduct of those companies in its performance of water services. Thus, using private companies to fulfill the right to water does not absolve the government of its obligation, and it will need to conduct rigorous regulation and oversight of the conduct of such companies.

Prior to 1997, water and sanitation services in Metro Manila were provided by the MWSS, a public company, which at that time was burdened with an $880-million debt. The operations of MWSS were inefficient and ineffective, as its piped water connections only reached two-thirds of the households in Metro Manila, and its service was characterized by low water pressure and constant supply interruptions.

During those years, the Philippine government favored privatization of public utilities due to the perceived prior success of the privatization of the electricity sector. To many, it seemed a good idea then to privatize water supply services for the government to finally get rid of the debts of public utility companies and improve services. 

Five years after privatization, water supply coverage reached 82% for Manila Water and 78% for Maynilad, compared to the 67% prior to privatization. Water quality improved drastically, and availability rose to 21 hours from 17. 

On the other hand, Maynilad and Manila Water were charging much higher water rates than before, with prices rising almost threefold within 5 years. 

There have also been instances where the government exhibited an overly-forgiving attitude towards the companies contracted to supply water. For instance, in 2001, it tolerated Maynilad’s failure to pay P200 million worth of concession fees. The government has also been remiss in penalizing both Maynilad and Manila Water whenever they failed to meet performance targets.

The disinclination of the government to impose penalties on Maynilad and Manila Water shifted the risk to the general public, disincentivizing the two companies from fulfilling their public service obligation of providing safe, clean, accessible, and affordable water supply.

The UN Committee on Economic, Social, and Cultural Rights (CESCR) has said that where private services are deployed for the provision of water to the public, the government must subject these private providers – like Maynilad and Manila Water – to strict regulations, imposing on them “public service obligations.” These regulations may include strict requirements regarding universality and accessibility of coverage and the continuity of service, quality requirements, and participation by the people in decision-making processes.

Most importantly, the government must ensure that water is provided at no or very low cost, and subsidized, if necessary. The CESCR explains that water, and water facilities and services, must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other human rights.

If the private entities are unable to fulfill their public service obligation of providing safe, clean, accessible, and affordable water, the government may be held accountable for any consequences from the outsourcing that are non-compliant with their obligation to uphold the right to water.

It is important that Filipinos are aware that access to safe, clean, accessible, and affordable water is their human right, and the Philippine government must be made accountable when this right is not fulfilled.

In late April, MWSS Administrator Reynaldo Velasco said he has initiated the drafting of an executive order to be issued by President Rodrigo Duterte to fast-track the “water security road map” for Metro Manila and other areas. In developing this road map, the MWSS is urged to look at the issue of water from a human rights perspective. It is important that this road map recognizes that water is a human right. – Rappler.com

Emerlynne Gil is a senior international legal adviser of the International Commission of Jurists (ICJ).

Joanne Ala is a fellow at the ICJ’s Asia Pacific Programme.