the human right to water and sanitation in emergency situations

- Part 1 - International laws applicable in emergencies
CHApTER 4 - RElATIONSHIp bETWEEN INTERNATIONAl
HUMANITARIAN lAW AND HUMAN RIGHTS lAW
4.1. Complementarity between IHL and HRL
International Humanitarian Law and human rights law are based on similar principles: to protect life, health
and human dignity. However, the manner in which they seek to ensure such protection differs significantly.
Thus, when conflict arises, questions emerge regarding the applicability of existing treaties and international
agreements, especially regarding human rights. During armed conflict, most human rights obligations
of States continue, as do the obligations of States under International Humanitarian Law as lex specialis.
IHL articulates the special rights that exist in conflict, and can be expressed as extensions (in detail) of core
rights laid down in human rights treaties.
4.2. Derogations to the application of human rights
During wartime or public emergency the enjoyment of certain human rights may be restricted. Indeed,
whether the duty of the State to respect, fulfil and protect human rights applies at all times or not, under
certain narrowly defined circumstances, such as during a declared state of emergency, the State may
temporarily suspend or derogate from one or other human right. Such derogations are exceptional measures
that are regulated under human rights law. Indeed, Article 4 of the International Covenant on Civil and
Political Rights allows States to take measures temporarily suspending some of their obligations under
the Covenant “in time of public emergency which threatens the life of the nation” , but only “to the extent
strictly required by the exigencies of the situation” . Such a situation is defined as something that threatens
the political independence or territorial integrity of the State, or the physical safety of its population. Internal
disturbances, war and natural disasters can be said to be examples of such public emergencies whereby
a State may suspend human rights for a limited duration because normal measures are inadequate to
address its concerns.
4.3. Some human rights can never be suspended
Despite the possibility of derogating from certain obligations under the ICCPR, Article 4 also specifies that
certain rights may never be suspended 25 . Interestingly, there is no provision in the Covenant on Economic,
Social and Cultural Rights that allows for derogation. Therefore, economic, social and cultural rights are
applicable also during emergency situations. A State must at least ensure access to rights essential to
survival, such as food and water, basic shelter, medical services and sanitation and request international
assistance when its resources are insufficient. In addition, derogations do not allow suspension of obligations
laid down by International Humanitarian Law. Moreover, Article 3 common to the four Geneva
Conventions provides that in times of armed conflict, persons protected by the conventions should “in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria” .
25 / Article 4.2 of the ICCPR lists the rights that States may not suspend even during an emergency: Right to life; Right to
freedom of thought, conscience and religion; Prohibition of genocide; Prohibition of torture or cruel, inhuman or degrading
treatment or punishment; Prohibition of slavery; The right to due process of law; The prohibition of punishment for any act
that was not a crime when act was committed
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