ACCESS TO WATER AND SANITATION: Analysis of the Mexican legal framework from a human rights perspective WaterLex Legal Country Mapping: Mexico June 2017 Published in 2017 by WaterLex, 7 bis avenue de la Paix, 1202 Geneva, Switzerland Copyright © WaterLex 2017 All rights reserved. No part of this report may be reproduced, stored in a retrieval system or transmitted in any form by any means without prior permission. Full acknowledgement must be provided in case of reference to this publication. Any commercial use shall be prohibited. ISBN: 978-2-940526-06-2 Suggested citation: Kruckova L. and Turner R. Access to water and sanitation: analysis of the Mexican legal framework from a human rights perspective. WaterLex: Geneva, 2017, 71p. Authors: Lenka Kručková and Rakia Turner Research and analysis: Mr. Rafael Alamar, Ms. Geraldine Gene, Ms. Lenka Kručková and Ms. Rakia Turner With legal research contribution from: White & Case LLP WaterLex and White & Case collaborated through the Thomson Reuters Foundation's TrustLaw programme. TrustLaw is the Thomson Reuters Foundation’s global pro bono legal programme, that connects leading law firms and corporate legal teams around the world with high-impact NGOs and social enterprises working to create social and environmental change. WaterLex expresses its gratitude to the Swedish International Development Agency (SIDA) and the Swiss Development Cooperation (SDC) for their financial assistance. The analysis and views expressed in this report are of WaterLex only and do not in any way, direct or indirect, reflect any agreement, endorsement or approval by any of the supporting organisations or their officials. For more information: WaterLex – International Secretariat WMO Building – 2nd Floor 7 bis avenue de la Paix 1202 Geneva, Switzerland Email: [email protected] Telephone: +41 (22) 900 16 64 EXECUTIVE SUMMARY Water and sanitation are key to sustainable exico’s water governance development and human well-being. Water is framework vital for life and required to realise many human M The water governance framework of rights, such as the rights to water, sanitation, food or health. The human rights to water and Mexico spans multiple levels of government: sanitation (HRWS) were recognised by the federal, regional, state, and municipal. The international community through resolutions National Constitution confirms water as a and conventions both at international and national asset over which the Federal Executive regional level. In 2015, a specific goal on water maintains authority. This authority includes was also adopted within the Agenda 2030 on instituting regulatory provisions as a means of Sustainable Development. The Sustainable maintaining control over the extraction of Development Goal 6 (SDG 6) addresses issues groundwater. As part of the Executive, various related to drinking water, sanitation, Ministries exercise activities in relation to wastewater, integrated water resources management of national water resources. management (IWRM) and ecosystems in However, it is the Ministry of Environment and addition to containing a specific target on Natural Resources (SEMARNAT) which has the participation of local communities and chief mandate. Pursuant to the National Water articulating aspects of the human rights to water Law, the National Water Commission and sanitation. (CONAGUA), an independent unit of SEMARNAT, has an extensive range of duties inclusive of The adoption of the Sustainable Development ensuring security and sustainability of Mexico’s Agenda means that a multitude of actions will be water resources, managing water rights and needed to reach the goals by 2030 and one of the development of hydrologic infrastructure. key challenges will be implementation. To achieve this, it is clear that the creation of an CONAGUA operates at both the national and enabling environment is needed for the regional level. CONAGUA’s Basin Agencies realisation of the objectives. This equally applies (Organismos de Cuenca), which are prescribed to the progressive realisation of the HRWS. One by the National Water Law, oversee 13 of the key components that characterise such administrative units at the regional level. These environment is the national legal framework, Basin Agencies carry-out administrative duties since adequate regulation can contribute to the such as management and control of various realisation of human rights but also SDGs, while permits and deeds concerning water rights, as conversely, gaps in the national framework can well as devising and implementing water policy. hinder it. In line with the approach to decentralise water The present analysis was conducted with the aim management and have increased input from the of demonstrating how the current national legal local levels, Basin Councils (Consejos de Cuenca), framework in Mexico reflects the normative also having their establishment per the National content of the HRWS and related human rights Water Law, serve as a conduit to have expanded principles, and how those rights are protected. participation in matters of water administration, The study provides baseline information to infrastructure development, improved water support governance and legal reforms, prepare services, sustainability, and the promotion of the targeted capacity-building activities and support socio-economic / environmental value of water other aspects of WaterLex’s work in the country. in civil society. The Basin Councils’ organisation i has a diverse composition with a view to having to water and sanitation in work places. The State representation from all levels of government, has furthermore ratified the Optional Protocols users, citizens and non-governmental to the International Covenant on Civil and organisations. Political Rights (ICCPR) and to CEDAW but not to State and municipal governments have an the ICESCR. Mexico has also not acceded to the essential role within Mexico’s water governance United Nations (UN) Economic Commission for framework. In our review of three States Europe (ECE) Aarhus Convention that addresses (Chiapas, Jalisco, Mexico), it was found that each participation, access to information and justice has its own State water law which stipulate its in environmental matters, nor the Water local water governance framework, including Convention, both of which are now open for entities such as State Water Commissions and ratification for non-ECE Member States. Technical Committees. Municipalities in Mexico At the regional level, Mexico has ratified key are certainly principal actors in water instruments that contain human rights closely governance as pursuant to the National related to access to water and sanitation. Constitution the provision of drinking water, However, at the time of writing, the State has sanitation, wastewater treatment and disposal not acceded to the Inter-American Convention services falls under their responsibility; normally on Protecting the Human Rights of Older through water utilities. Persons, that recently entered into force, neither The National Water Law is federal legislation to the Inter-American Convention Against All which regulates all water resources in Mexico Forms of Discrimination and Intolerance, nor to and as mentioned above, establishes water the Inter-American Convention Against Racism, governing entities and their roles and Racial Discrimination and Related Forms of responsibilities. While it confirms CONAGUA as Intolerance (not yet in force), which refer the authority in formulating national water explicitly to access to water and sanitation. policy, it also establishes 22 principles that serve In Mexico, treaties that are compliant with the as a guide for application and interpretation of Constitution are part of the supreme law of the its provisions and the National Water Program. Union. According to the Constitution, everyone Additional federal legislation addresses various is entitled to the human rights granted by the aspects of water resources management and Constitution and by the international treaties to supply, covering tariff setting for use, quality of which Mexico is a party. The country’s supply, and environmental matters to name a international commitments arising from bilateral few. and multilateral treaties therefore form part of nternational commitments with the national legal framework and Courts may refer to those instruments in their judgments. All respect to the human rights to water authorities, in their areas of competence, are I and sanitation also obliged to promote, respect, protect and Mexico has ratified an important number of guarantee human rights, in accordance with the treaties which contain explicit or implicit principles of universality, interdependence, provisions on access to water and sanitation indivisibility and progressiveness. As a services as human rights. The State has acceded consequence, the Constitution requires the namely to the International Covenant on State to prevent, investigate, penalise and rectify Economic, Social and Cultural Rights (ICESCR), violations to human rights, according to the law. the Convention on the Elimination of All Forms Mexico has committed to the realisation of the of Discrimination against Women (CEDAW), the human rights to water and sanitation through Convention on the Rights of the Child (CRC) and international and regional treaties. most of the International Labour Organization’s (ILO) conventions that contain articles on access ii he human rights to water and responsibilities for water and sanitation