The right of water in Republic of North Macedonia
Analysis of professor Elena Mihajlova Stratilati PhD, on the decision U.br.130/2018-1 adopted by the Constitutional Court of Repubublic of North Macedonia.
INTRODUCTION
The text analyzes the Decision of the Constitutional Court of the Republic of
North Macedonia U.no.130/2018 of 8th of May 2019 that repeals
Article 33 paragraph 1 and paragraph 4 in the section “… s (1) and” of the Law
on Drinking water supply and Urban waste water drainage. The Decision will be
explained in the light of the international human rights law or international
legal rules concerning the human right to water. Thus, after a brief overview
of the Decision (the legal arguments and the basis of the Decision), an
overview of the international legal framework of the right to water will be
made, followed by an analysis of the Decision through the prism of those same
international rules and standards.
SUMMARY OF THE DECISION
The Constitutional Court's decision subject to this analysis stems from the
initiative of the Association for Health, Education and Social Assistance
"SAED" - Skopje of 27 February 2017 on the assessment of the
constitutionality of Article 33 paragraph 1 of the Law on Drinking water supply
and Urban waste water drainage[1] as
opposed to article 8 paragraph (1) line 3; article 10; article11; article 34
and 39 paragraph 2 of the Constitution. Within the constitutional review
procedure, the Court, on its own initiative, included paragraph 4 in the
section "...s (1) and" of the same Article.
The relevant provisions
of the impugned Law provide that "the service provider shall have the
right to discontinue the supply of drinking water and drainage of urban
wastewater, in case the user of the service and after a prior written warning
fails to meet the obligation to pay the fee" (Article 33, paragraph 1) and
that "the costs of disconnection and reconnection ... [in this case] shall
be borne by the user of the service" (Article 33, paragraph 4).
In making its decision,
the Constitutional Court referred to:
- the Constitution of the Republic of North
Macedonia - Article 1 paragraph 1 (according to which the Republic of North
Macedonia is a sovereign, independent, democratic and social state), Article 8
paragraph 1, lines 1, 3 and 10 (according to which within the fundamental
values of the constitutional order of the Republic of North Macedonia, among others, fall: the
basic freedoms and rights of the individual and
citizen, recognized in international law and set down in the Constitution;
the rule of law and; proper urban and rural planning
to promote a congenial human environment, as well as ecological protection and
development;), Article 10 paragraph 1 (which guarantees the
inviolability of human life), Article 35 paragraph 1 (which provides that the
Republic provides for the social protection and social security of citizens in
accordance with the principle of social justice), Article 39 paragraph 2
(according to which citizens have the right and duty to protect and promote
their own and the health of others), Article 54 paragraph 1 (which provides
that the freedoms and rights of the individual and citizen can be restricted
only in cases determined by the Constitution) and Article 56 paragraph 1
(according to which all the natural resources of the Republic, the flora and
fauna, amenities in common use, as well as objects and buildings of particular
cultural and historical value determined by law, are amenities of common
interest for the Republic and enjoy particular protection);
- Law on
Waters[2] according to which
water is an amenity of common interest for the Republic and enjoys particular
protection in a manner and under conditions set out in this Law;
- Law on Communal
Activities[3] - Articles 3 and 6
(under which drinking water supply, technological water processing and
delivery, as well as drainage and discharge of atmospheric waters are defined
as communal services of public interest whose particular conditions and manner
of conduct are regulated by law)
- Law on
Drinking water supply and Urban waste water drainage – Articles 1; 3 item 17;
4; 5 and 6 (defining the subject matter of the law; service users; drinking
water supply and urban waste water drainage as services of common interest;
defining the activities of the service provider for which he and the service
user enter into an agreement regulating the mutual rights and obligations, and
the rules regarding the determination of the price of drinking water and
discharge of urban waste water)
- Law on Obligations[4] - Article 17-b (according to which one of the
grounds for the occurrence of the obligations is the conclusion of a contract
between the service provider and the service user governing their mutual rights
and obligations).
On the basis of the
analysis of the quoted constitutional and legal provisions, the Court held that
the impugned provision of Article 33 paragraph 1 and paragraph 4 in the
section: “… s (1) and” of the Law on Drinking water supply and Urban waste
water drainage is not in accordance with the constitutional norms referred to
in the Initiative and has made a decision to repeal it.
Namely, proceeding from
the constitutional and legal qualification of water as amenity of common and
public interest, the Court found that the impugned provision by which the
service provider may discontinue the supply of drinking water and drainage of
urban water in the event that the user of the service and upon prior written
warning fails to meet the obligation to pay the fee – violates or restricts the
basic human and citizen's rights: the
right to use water as a basic means of livelihood, as well as the dignified
exercise of the right and duty of citizens to protect and promote their own and
the health of others.[5] The
Court therefore concluded that the present impugned provision is not in
accordance with the constitutionally guaranteed fundamental freedoms and rights
of the citizen under Articles 10 and 11 of the Constitution (the right to life
and the right to physical and moral dignity i.e.
freedom from torture), as well as the social rights referred to in Articles 34
and 39, paragraph 2 of the Constitution (the right of citizens to social security and social insurance, determined by law
and collective agreement and their right and duty to protect and promote
their own and the health of others). In addition, the Court found the same
provision to be inconsistent with Article 56 paragraph 1 of the Constitution
according to which water as an amenity of common and public interest enjoys
particular protection, thereby preventing the legislator from restricting the right of the individual and citizen in the manner provided.
Further, with regard to
examining the compliance of paragraph 1 of Article 33 of the impugned Law with
Article 8 paragraph 1 line 3 of the Constitution (according to which the rule
of law is a fundamental value of the constitutional order of the Republic of
North Macedonia), the Court held that “the impugned paragraph is vague and
imprecise and as such it violates the principle of the rule of law and the
legal certainty of citizens." That is to say, from the content of the
impugned provision "it is not clear how, when and in what procedure and
form a prior warning to the service user is given so that he or she can fulfill
its obligation"; nor "whether in the pre-filing phase of a written
warning, a particular procedure was in progress and whether certain actions had
been taken before other competent authorities provided for in the context of
positive legal regulation before the occurrence of a water supply interruption".[6] Whereas (according to the Law on Drinking
water supply and Urban waste water drainage) the service provider and the user
of the service conclude a contract that regulates the mutual rights and obligations, which (in accordance with the
Law on Obligations) is purely obligational
relationship, in case of non-fulfillment of certain defined obligations to
which the parties have agreed with concluding the contract, the jurisdiction
for non-fulfillment of the contract has regular litigation, which means that judicial protection is provided. The
Court therefore concludes that the existence of the impugned paragraph only
leads to legal uncertainty for the citizens and at the same time a violation of
the rule of law as a fundamental value of the constitutional order of the
Republic of North Macedonia provided for in Article 8 paragraph 1 line 3 of the
Constitution.
On the basis of the same
reasoning, the Court, on its own initiative, decided to also repeal paragraph 4
of Article 33 in the section "...s (1) and" of the impugned Law.
RELEVANT INTERNATIONAL NORMS ON THE
RIGHT TO WATER
The international
community has clearly recognized that access to safe drinking water and
sanitation must be considered within a human rights framework. Access to safe
drinking water is a fundamental precondition for the enjoyment of several human
rights, including the rights to education, housing, health, life, work and
protection against cruel, inhuman or degrading treatment or punishment. It is
also a crucial element to ensure gender equality and to eradicate
discrimination.
The human right to water
has emerged out of a series of non-binding and binding legal instruments,
including UN resolutions and the International Covenant on Economic, Social and
Cultural Rights. It is a progressive right (becomes implemented over time under
good faith), but with certain obligations that are intended to be effective
immediately.
Thus, a number of human
rights treaties explicitly recognize and guarantee the access to water and
sanitation as a human right.[7] However, the key
foundational documents of the international human rights system have not
referred directly to a human right to water; it is more implicitly included and
derives from obligations pertaining to the protection of other human rights.
So, the right of access to water and sanitation can be considered an essential
part of the right to an adequate standard
of living, particularly since it is one of the most fundamental conditions
for survival. This is the central legal basis of this right. However, the right
to water and sanitation is also inextricably linked to the right to the highest attainable standard of health, the right to adequate housing and adequate food.[8] The right to life may also, in certain narrowly defined situations, be
relevant in terms of access to water and sanitation.[9]
- Normative content of
the right to water (key aspects relevant to the case) -
The effective
implementation of the human right to water will provide natural persons with
their right to water in terms of quality, quantity, affordability, and access.
This is explained in the definition provided by the Committee on Economic,
Social, and Cultural Rights, which defines the human right to water as a right
to “sufficient, safe, acceptable, physically accessible and affordable water.”
The right to water
contains both freedoms and entitlements. The freedoms include the right to
maintain access to existing water supplies necessary for the right to water,
and the right to be free from interference, such as the right to be free from
arbitrary disconnections. By contrast, the entitlements include the right to a
system of water supply and management that provides equality of opportunity for
people to enjoy the right to water. [10]
To be specific, water
and water facilities and services must be accessible to all, including the most
vulnerable or marginalized sections of the population[11],
in law and in fact, without discrimination on any of the prohibited grounds.[12] In the part of the accessibility,
the right to water requires "water, and water facilities and services to
be affordable for all" and nobody to be deprived of access because of an
inability to pay.[13] States parties have a special
obligation to provide those who do not have sufficient means with the necessary
water and water facilities and to prevent any discrimination on internationally
prohibited grounds in the provision of water and water services.[14]
As such, the human
rights framework does not provide for a right to free water. However, in
certain circumstances, access to safe drinking water and sanitation might have
to be provided free of charge if the person or household is unable to pay for
it. It is a State’s core obligation to ensure the satisfaction of, at the very
least, minimum essential levels of the right, which includes access to a
minimum essential quantity of water.
Consequently: is it permissible to disconnect water services? While
the right to water does not prohibit disconnections from water services, it puts
limits and conditions on these actions. Overall, disconnections must be
performed in a manner warranted by law and must be compatible with the International Covenant on Economic, Social and Cultural
Rights. Those affected must be provided with effective procedural guarantees,
including: an opportunity for genuine consultation; timely and full disclosure
of information on the proposed measures; reasonable notice of proposed actions;
legal recourse and remedies; legal assistance for obtaining legal remedies.[15]
Since the individual
shall under no circumstances be deprived of the minimum essential level of
water, the quantity of safe drinking water a person can access may be reduced,
but full disconnection may be permissible only if there is access to an
alternative source which can provide a minimum quantity of safe drinking water
needed to prevent disease. In this respect, there is a strong presumption that
disconnection of institutions serving vulnerable groups such as schools,
hospitals and refugee or IDP camps are prohibited.
If the disconnection
relates to non-payment, person’s capacity to pay must be taken into account
before the actual disconnection takes place. Read in conjunction with the
affordability criteria, this requirement implies that, in certain instances,
when individuals are unable to pay for water, the authorities might have to
provide it for free. In this respect, a number of national laws restrict
disconnections of water services, in particular those that occur as a result of
the user’s inability, rather than unwillingness, to pay.
ANALYSIS OF THE
JUDGEMENT
The Constitutional Court
in its decision repeals the impugned provision as contrary to the
constitutionally guaranteed rights of the citizens and the fundamental values
of the constitutional order of the Republic of North Macedonia.
The Court in its reasoning refers to the right to water ("the right to use
water as a basic means of livelihood"), as a public good necessary for the
maintenance of life and health and fundamental to everyone's dignity. In this
regard, although the decision does not explicitly refer to international
treaties guaranteeing the right to water, it is resonant with the
interpretations of international human rights law according to which "the
right to water must be adequate for human dignity, life and health".[16]
In addition, under
international treaties guaranteeing the right to water, States must ensure that
access to water and water services are provided within a context of clear
rules. Violations of the rights to water and sanitation have generally been
dealt with more effectively where constitutional and legislative protections
guarantee that those rights are directly or indirectly justiciable. In this
regard, by repealing the impugned provision as contrary to the principle of the
rule of law and the legal certainty of citizens, the Court affirms the human
right to water as justiciable (which is in line with the requirements of the
international human rights law advocating for more efficient resolution of
potential violations of the right to water).
We can conclude that the
Constitutional Court's decision refers to the human right to water, and is in
line with its understanding under international human rights law. At the same
time, its main disadvantage is that it does not refer to the international
agreements ratified by the Republic of North Macedonia containing rules
relevant to access to water and sanitation. The Court thus misses the
opportunity to clarify the conditions under which access to water and water
supply services may be interrupted and to provide (in an indirect manner)[17] guidance on the legislation.
International agreements
are one of the direct sources of law. According to Article 118 of the Constitution
of the Republic of North Macedonia, international agreements ratified in
accordance with the Constitution are part of the internal legal order of the
Republic of North Macedonia. This constitutional provision is implemented in
Article 98 of the Constitution, according to which the courts in the Republic
of North Macedonia judge on the basis of the Constitution, laws and
international agreements ratified in accordance with the Constitution. In this
regard, a number of relevant international agreements, such as the
International Covenant on Economic, Social and Cultural Rights (basic in our
context) are directly applicable in the Republic of North Macedonia.
As we have previously
explained, under the international human rights treaties, when water disconnections
are carried out due to defaulting payment, due process must be followed prior
to disconnection and it must be ensured that individuals still have at least
access to a minimum essential level of water. Likewise, when water-borne
sanitation is used, water disconnections must not result in denying access to
sanitation. Referring to these sources, the Court had the opportunity (in
addition to guaranteeing judicial protection of the right to water) to clarify
the conditions under which water supply could be cut off (protection against
discrimination, protection of vulnerable sections of society, etc.). They
would, in turn, be useful guidelines for: more effective judicial protection of
the right to water, improvement of existing national legislation, ie adoption
of better and more specific laws and standards on water and sanitation
legislation.
The Constitutional Court
should promote the use of international law in interpreting domestic
legislation. In our case, it should be ensured that international law and
jurisprudence on human right to water are used in the interpretation and
application of domestic legislation governing access to water and sanitation. A
progressive judiciary that is cognizant of the linkages between different human
rights can give real impetus to the advancement of the full range of economic,
social and cultural rights. Finally, the courts must ensure that laws are
interpreted consistently with international human rights as well as to further
the overarching aims of dignity and equality.
[1] Law on Drinking water supply and
Urban waste water drainage (Official Gazette of the Republic of North Macedonia
no. 68/04, 28/06, 103/08, 17/11, 54/11, 163/13, 10/15, 147/15 and 31/16)
[2] Law on Waters („Official
Gazette of the Republic of North Macedonia“ no. 87/08, 6/09, 161/09, 83/10,
51/11, 44/12, 23/13, 163/13, 180/14, 146/15 52/16)
[3] Law on Communal Activities („Official
Gazette of the Republic of North Macedonia“ no. 95/12, 163/13, 42/14, 44/15, 147/15,
31/16, 64/18)
[4] Law onObligations („Official Gazette of the Republic of
North Macedonia“ no.18/01, 78/01, 4/02, 59/02, 5/03, 84/08, 81/09, 161/09, 123/13)
[5] See item 5 of Decision of the Constitutional
Court of the Republic of North Macedonia U.no.130/2018-1
[6] Ibid.
[7] The access to water and sanitation is, for
example, explicitly stated in the Convention on the Elimination of All Forms of
Discrimination against Women, 1979 (Article 14 (2)); the Convention on the
Rights of the Child, 1989 (Article 24 and Article 27 (3)) and the Convention on
the Rights of Persons with Disabilities, 2006 (Article 28).
[8] See
General Comment no. 6 (1995), General Comment No. 14 (2000) and General Comment
No. 15 (2002) of the Committee on Economic, Social and Cultural Rights as
regards the interpretation of Article 11 (1) - right to an adequate standard of
living, and Article 12 (1) - the right to the highest available standard of
health of the International Covenant on Economic, Social and Cultural Rights.
See also Complaint no. 27/2004 before the European Committee of Social Rights (European Roma Rights Center v. Italy,
Decision of 7 December 2005) concerning the interpretation of the right to
adequate housing under Article 31 (1) of the Revised European Social Charter.
[9] See General Comment no. 6 (1982) of
the Human Rights Committee
[10] General Comment No. 15 of the Committee on
Economic, Social and Cultural Rights, para.10.
[11] Whereas
the right to water applies to everyone, States parties should give special
attention to those individuals and groups who have traditionally faced
difficulties in exercising this right, including women, children, minority
groups, indigenous peoples, refugees, asylum seekers, internally displaced
persons, migrant workers, prisoners and detainees. General Comment No. 15 of
the Committee on Economic, Social and Cultural Rights, para.16.
[12] Ibid., para. 12, c (iii).
[13] Ibid., para.12, c (ii).
[14] Ibid., para. 15.
[15] General Comment No. 15 of the Committee on
Economic, Social and Cultural Rights, para.56.
[16] General
Comment No. 15 of the Committee on Economic, Social and Cultural Rights, para.
11.
[17] It is
certainly not a matter of direct guidelines, since its powers in this respect
are limited to the principle of separation of powers.