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What about an islandness-based approach on the right to water for children? Reflections on the Dutch case of cutting off water supply



Is international human rights law imposing on States the obligation to ensure that households with minor children are not cut off from drinking water in the event of the non-payment of a water bill? This question has triggered a widely discussed human rights case in the Netherlands. The children's rights organisation Defence for Children (DfC) and the Dutch Jurists Committee for Human Rights (NJCM) have taken the Dutch State and public water companies to court arguing that such cut-offs are in violation of the children’s unconditional and independent right to water. They invoked in particular the violation of a number of provisions under the UN Convention on the Rights of the Child (CRC), 1989, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. On 6 April 2022, the District Court of The Hague ruled that cutting off water supply to families with children when parents cannot pay the water bill does not violate human rights standards. Interestingly enough, the same court made sure to observe that in a concrete case, where all circumstances are considered and the situation of a particular child is taken into account, its conclusion could be different (para 4.26). In November 2022, the applicants appealed against the 6 April 2022 judgment and thus at least one more verdict on the case is anticipated.

Certainly, one can write on a number human rights issues implied in these two cases. What we will be focusing our attention to, though, is a rather specific angle that pertains to islandness: a contested concept concerning the specificities of islands, island studies, and island identity. For the purposes of this short analysis, the term ‘islandness’ is used in its broad sense to refer to qualities of islands that distinguish them from the continent. While admittedly the two cases bear many similarities, the right to access to water for children living on an island like Curaçao invites special attention and brings into the fray the necessity for an islandness-based approach in human rights.

What about children on islands and the right to water?: The case of Curaçao

Islandness often comes with challenges when it comes to access to clean drinking water and Curaçao is no exception here. According to HiMA, there are about 4,000 people on the island who are disconnected from or were never connected to the water supply network. In addition, a large group of islanders who have a connection do not use water because they cannot pay the bill. Water in Curaçao is more expensive than in the Netherlands since the drinking water is produced from seawater due to the lack of ground and inland surface water in Curaçao. Further, the percentage of the non-revenue water is higher in Curaçao due to the poor maintenance of the pipes, and this leads to the higher price. According to testimonies, elderly people who are still able to do so, and quite a few single people and families with children, walk along the road with jerry cans or loose bottles to fetch water from relatives or neighbours. With poverty being a prevailing problem on the island, guaranteeing the right to water for children in Curaçao requires multifaceted solutions. In 2012, but also many years later in 2020, the Ombudsman of Curaçao pointed out the lack of access to clean drinking water for vulnerable citizens in Curaçao, together with the Ombudsman of Sint Maarten and the National Ombudsman in the Netherlands.

Moreover, the fact that some households are not even connected to the network of Aqualectra, the sole water provider in Curaçao, shows that the issue is not only the non-payment of bills. Thus in the case where families with children are disconnected from the network, the responsibility cannot be solely attributed to parents or caregivers. This is a notable difference from the first case brought by NJCM and DfC, as mentioned in the Amicus Curiae. Furthermore, this suggests that those households cannot practically utilise the subsidy arrangements offered by the country of Curaçao which offers to pay the monthly water bills up to 2 m3 per person in case of the inability to pay.

In light of the aforementioned observations, it comes as little surprise that in its recent Concluding Observations for the Netherlands, the UN Committee on the Rights of the Child invited the Netherlands to further strengthen its policies to ensure that all children in all constituent countries have an adequate standard of living with explicit reference to Curaçao along with Aruba and Sint Maarten (para 33a). Yet the regional disparities that are the source of concern for the Committee in this case have an inherent feature that usually goes unnoticed. This feature is none other than islandness itself.

What about an islandness-based approach to human rights?

The previous lines illustrated in a nutshell how children in Curaçao face cumulative challenges when it comes to their right to water and how their vulnerability is not only connected to their age or poverty but also to islandness. It does not fall within the ambit of this short analysis to discuss exhaustively how islandness affects the right to water. There are island studies works and other projects that demonstrate the complexities (see for example here).

Interestingly enough, General Comment No. 15 on The Right to Water adopted by the UN Committee on Economic, Social and Cultural Rights is one of the few human rights documents that seem to include the idea that islandness may qualify as ground of vulnerability (for other examples see, indicatively, here and, more recently, here). More precisely, it lists those living on small islands as groups “facing difficulties with physical access to water” (para 16(h)). Other groups involve older persons, persons with disabilities, victims of natural disasters, persons living in disaster-prone areas, and those living in arid and semi-arid areas.

Even so, human rights law in general does not seem to encompass islandness as a ground worth focusing on, even though pragmatically, as the case of Curaçao indicatively exemplified, human rights challenges on island settings are often exacerbated precisely because of the special features of islands (see, indicatively, here). For example, in its latest Concluding Observations with respect to the Netherlands, the Committee on Economic, Social and Cultural Rights raised concerns about the access to water for undocumented migrants, but no mention was made to the access to water on people living on islands. One could legitimately argue that human rights have progressed without considering islandness as a relevant factor for their realization. The local island communities, especially when small in size, seem to have little reliance on human rights as a machinery for addressing the challenges islandness comes with (see the relevant references to small communities here, pp. 208-216). With few exceptions, human rights lawyers and defenders rarely seem to cohesively consider islandness as a factor relevant to their work. It thus comes as little surprise that both local and international human rights bodies do not comprehensively consider islandness as a feature worth assessing in when monitoring the implementation of human rights.

The Dutch case on children’s right to water qualifies as a case that can exemplify the potentials of an islandness-based approach to human rights. In the case of Curaçao, the local communities and human rights defenders have one more ground to invoke in their claims against the State and water companies. Invoking islandness itself reflects much more efficiently the challenges of the case and provide an additional argument from a human rights perspective. Understanding that islandness is connected to the realisation of human rights is after all a starting point for States to find the appropriate measures to address human rights challenges on islands.

Dr. Aikaterini Tsampi is Assistant Professor of Public International Law at the University of Groningen.

Grace Nishikawa is a researcher at the Department of Transboundary Legal Studies of the Faculty of Law, University of Groningen. She is also a national rapporteur for Japan, Global Network of Peer Reviewers on Climate Litigation, Sabin Center for Climate Change Law, Columbia Law School.

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