The Regulation of Planetary Health Challenges: A Co-Benefits Approach for AMR and WASH

3.1 (i) WASH and Health: Identifying the Links

WASH offers an entry point for considering the connections between drinking water, sanitation and hygiene. This is significant because sanitation was for a long time a subsidiary concern to drinking water supply. The latter seemed to be a more obvious priority, given that the absence of sufficient safe drinking water is a direct cause of death. At the same time, it became increasingly clear that considering insufficient access to sanitation separately from other concerns was inappropriate. This is, for instance, reflected in the 485,000 diarrhoeal deaths caused each year by microbiologically contaminated drinking water. 3 The linking of water and sanitation was progressively extended to hygiene, which broadens the scope of the sector more generally to measures meant to foster good health.

Bringing together these three sectors under the single acronym of WASH is helpful in terms of highlighting connections that are evident but not necessarily effectively addressed. The link between drinking water and sanitation can be identified, for instance, through the negative impacts of untreated or partly treated sewage making its way to sources of drinking water or the impacts of leach pits – #x2013;pits from which liquid seeps into the soil without treatment – #x2013;that may contaminate groundwater used as a source of drinking water. 4 It is estimated that at least two billion people use a faecally-contaminated source of drinking water. 5 To the extent that sanitation is often water-based, linking the two sectors is an obvious choice in terms of addressing water quality issues and the negative health impacts of low-quality drinking water.

The link between water, sanitation and hygiene expands WASH beyond its strong water-centric framing and strengthens the health dimension. It also ensures that health is not seen only in terms of the negative impacts of low water quality but also in terms of positive elements addressed through hygiene measures, which may, for instance, contribute to the prevention of diseases rather than a focus on treating existing diseases.

3.2 (ii) Access to Antibiotics and AMR: Health, Water and Environment

WASH plays a critical role in Infection Prevention and Control (IPC) by reducing the transmission of resistant strains in the environment. Low- and Middle-Income Countries (LMICs) suffer a disproportionately high burden of WASH-related diseases including cholera, dysentery, diarrhoea, hepatitis A, and typhoid. Antibiotics are used as a ‘quick fix’ to treat water-borne diseases (even though the latter may be caused by viruses and not bacteria) in the absence of effective WASH measures. 6 Such inappropriate or excessive consumption of antibiotics also contributes to the development of AMR in human beings. Similar issues arise through the widespread use of antibiotics in animal production for human consumption partly to prevent/control diseases arising from poor living conditions including water availability.

The use of antimicrobials could be reduced by 60 per cent if there was universal access to improved WASH services in LMICs. 7 . Hygiene measures are also directly relevant since appropriate behaviour, such as regular hand washing before food or after contact with faecal matter significantly reduces diarrhoeal diseases. Similarly, the widespread use of antibiotics for growth promotion in livestock could be phased out in favour of best practices in the production of healthy animals. 8

Up to 90 per cent of antimicrobial doses can be excreted as an active compound or metabolites into the environment. 9 The WHO estimates that globally, two billion people do not have basic sanitation facilities such as latrines, out of which 673 million practice open defecation. 10 . The practice of open defecation can lead to the spread of resistant organisms in the environment. 11 . Sanitation also addresses ways in which human waste is managed and the consequences of inappropriate discharge into the environment of untreated or partly treated waste, which may include antibiotics that then make their way into drinking water sources. Offsite wastewater treatment plants and onsite sanitation facilities like septic tanks reduce faecal bacteria, including resistant bacteria from wastewater. However, they cannot deal with high levels of bacteria. Wastewater treatment plants are not ordinarily designed for removal of antimicrobial residues or resistant organisms. 12 Therefore, discharge of treated wastewater into the environment also contaminates water bodies leading to the spread of resistant infections.

Animal faeces accounts for 80 per cent of the total faecal biomass in the world. Yet, ensuring containment and safe use of animal faecal wastes is not a policy priority. 13 Improper disposal of animal waste/carcasses containing antibiotic residue in the absence or poor implementation of biosecurity protocols is another source of AMR in the environment. When human and animal excreta containing resistant microorganisms is disposed of indiscriminately, it is easily washed by rain into surface water sources such as rivers and lakes, and groundwater through seepage leading to the spread of resistant infectious diseases.

AMR in the environment can undermine positive WASH outcomes. Human waste carries antimicrobial resistant pathogens and there is increased risk of infections for people exposed to these pathogens in the environment. Similarly, the discharge of effluents containing antibiotic residue from pharmaceutical manufacturing units, and the improper disposal of unused/expired antibiotics may lead to the emergence of AMR in the environment, which may reach human beings directly or indirectly. This calls for prevention or control of use of antibiotics except where it is necessary.

4.1 (i) International Law

The link between AMR and WASH is recognized at the international level but there is little by way of binding international law concerning health, the environment, water, and human rights. Even though AMR is viewed as a public health challenge first and foremost, international health law is silent in respect of AMR generally and the link between AMR and WASH specifically. The World Health Organization’s (WHO) Guidelines for drinking water, recreational water, and safe use of wastewater include no information on antibiotics. At the same time, the link is explicit in at least two of the five objectives of the WHO’s non-binding Global Action Plan on Antimicrobial Resistance 2015. Objective 3 is concerned with reducing the incidence of infection through effective sanitation, hygiene, and infection prevention measures. Objective 4 deals with the development of standards and guidance inter alia for the presence of antimicrobial agents and their residues in the environment, especially in water, wastewater, and food. However, the Global Action Plan is silent in respect of the discharge of antibiotic residues from pharmaceutical manufacturing industries into the environment.

None of the international environmental law instruments refer to AMR, WASH, or the link between the two. At the same time, several principles of environmental law are relevant to the regulation of AMR and WASH. These environmental law principles include the pre-emptive principles of prevention and precaution, as well as the post facto principles of polluter pays and rectification at source. The notion of stewardship reflected for instance in the public trust doctrine where the State is the trustee on behalf of the people, and equity concerns encompassed in the principles of intra-generational and inter-generational equity are also relevant to address unequal spatial and temporal distribution of benefits and costs of AMR and WASH. The concept of sustainable development and the integration principle must be applied to address AMR and WASH concerns to ensure a just and equitable balance between competing objectives.

International water law is largely silent in respect of WASH and includes no mention of AMR. The 1997 UN Convention on the Law of the Non-navigational Uses of International Watercourses refers to ‘vital human needs’, which is ‘sufficient water to sustain human life’ and includes drinking water and water required for food production to prevent starvation. 14 However, its central concerns revolve around allocation of water between riparian states focused on use of water, rather than the protection of water and the interests and rights of individuals and communities. The international water law instrument that goes much further is the 1999 UNECE Water and Health Protocol, which aims to protect human health by better water management and by reducing water-related diseases. 15 It is, however, a regional agreement and does not (yet) reflect a broader international law position. International human rights law is also relevant, and this is discussed in section 5(i) below.

Other relevant international frameworks include the Sustainable Development Goals (SDGs), which are the ‘blueprint to achieve a better and more sustainable future for all’ by 2030. 16 While these goals are not legally binding, countries are expected to establish a national framework for achieving them. In 2020, two specific AMR indicators were included in SDG 3 on good health and wellbeing. 17 With this development, SDGs now offer an entry point for considering not only the connections between the economic, social, and environmental aspects of development but also more directly for linking these with health and AMR. In addition, AMR could have significant effects on several SDGs. 18 These include SDG 1 seeking to end poverty, SDG 2 seeking to end hunger, SDG 8 promoting decent work and economic growth, and SDG 12 promoting responsible consumption and production. In addition, WASH forms part of SDG 6, which is concerned with ensuring access to water and sanitation for all. Target 6.1 is to achieve universal and equitable access to safe and affordable drinking water for all, and Target 6.2 is to achieve access to adequate and equitable sanitation and hygiene for all and end open defecation. Finally, the WHO has called for including AMR in the UN Sustainable Development Cooperation Framework, which is the agreement between the UN and each host government where the UN has a country team for planning and implementation of activities in support of the SDGs.

Overall, the international framework is structured around some of the relevant fields of international law, including health, environment, and water law. The picture that emerges is that of limited contributions and in addition, each of these contributions tends to consider either AMR or WASH but not what brings them together. Further thinking is starting to emerge in broader policy forums, such as those focused on sustainable development and the addition of AMR-specific targets in the SDGs may help in bridging the identified gaps. Yet, there is clearly a long way to go before AMR and WASH are comprehensively and collectively addressed in binding international law.

4.2 (ii) National Law (India)

In the absence of binding AMR laws at the national or subnational laws, national action plans provide the starting point for AMR regulation in different countries. The WHO expects countries to develop their own national action plans on AMR in line with the framework set out in its Global Action Plan. In 2017, the Government of India responded with the National Action Plan on Antimicrobial Resistance (NAP-AMR). However, these national action plans do not start with a clean slate. Instead, they rely on a combination of existing measures in different areas and new measures to regulate AMR. This is true for WASH-related measures.

India’s NAP-AMR sets out six strategic priorities to tackle the public health challenge of AMR. Five of these strategic priorities involve action on WASH or engagement of WASH sector actors. 19 For instance, the first strategic priority is to improve awareness and understanding of AMR inter alia through an effective communication programme with a focus on infection prevention through hand hygiene, clean water, sanitation, biosafety in animal farms etc. The third strategic priority is to reduce the incidence of infection through effective infection, prevention, and control in healthcare settings, veterinary settings and animal husbandry, and the community. Interventions and activities include streamlining hand hygiene and sanitation as components of monitoring/performance payment within different schemes or quality programmes, increasing community awareness for good production practices (proper hygiene/sanitation/practices of IPC), hygiene, sanitation, and infection prevention in the community, and reducing environmental contamination with resistant genes, resistant pathogens, and antimicrobial residues.

There is no national water, sanitation, or health law in India. Water, sanitation, and health are state subjects according to the Constitution of India 1950. However, most states have not enacted such laws. Instead, the national government relies on non-legally binding policies to regulate certain aspects of WASH. The Jal Jeevan (Water is Life) Mission aims to provide water supply to every household by 2024 and focuses on source sustainability. The Swachh Bharat Abhiyan (Clean India Campaign), Kayakalp and Swachh Swasth Sarvatra initiatives address open defecation by increasing uptake of toilets. There is also growing recognition of the need for proper management of human waste. The new rural sanitation strategy combines these priorities with a shift in focus from open defecation free (ODF) to ODF Plus, that is, sustaining ODF behaviour and ensuring access to solid and liquid waste management for every village. 20 Effective implementation of these objectives can prevent or control the emergence of AMR in the environment. However, this strategy does not refer to AMR although it was finalised after the launch of NAP-AMR.

Insofar as AMR in the environment is concerned, the NAP-AMR explicitly attempts to address the discharge of antibiotic residues from pharmaceutical manufacturing units into the environment. Strategic priority 2 seeks to strengthen knowledge and evidence through surveillance of such antibiotic residues through the development of a national framework and standards. Strategic priority 4 focuses on reducing the incidence of infection through effective IPC including reducing environmental contamination with antimicrobial residues. One of its strategic interventions and activities is to develop and implement a strategy and operational plan to reduce environmental impact on AMR, which will include definition of standards and monitoring of antibiotic residues. The Environment (Protection) Act, 1986 and the Water (Prevention and Control of Pollution) Act, 1974 regulate environmental pollution in India. The former, through the Environment (Protection) Rules, 1986 sets standards for treatment of several types of effluents from municipal and industrial sources. However, they are silent in respect of discharge of antibiotic residue in effluents from pharmaceutical manufacturing units. In 2020, building on the commitments expressed in the NAP-AMR, the national government published the draft Environment (Protection) Amendment Rules 2020 establishing upper limits for the concentration of antibiotic residues in treated effluent. 21 These standards were not included in the law eventually.

Overall, India’s regulatory framework for addressing AMR and WASH is characterized by limited connections between the different measures proposed. Some of the measures are mostly technical, such as the proposed limits on the concentration of antibiotic residues in treated effluents. Others emphasize the social dimensions, such as the focus of the Jal Jeevan Mission on ensuring access to water to all households by 2024. These different elements are not well linked, in part because they are understood as falling in different domains, such as ‘drinking water’ and ‘environment’. Beyond this, even though these measures are largely anthropocentric in scope, they remain completely detached from fundamental rights concerns. This is what we take up in the next section.

5.1 (i) Linking Water, Sanitation, Environment and Health

WASH relates directly to the realization of the rights to health, food, livelihood, water, sanitation, and the environment. The ICESCR recognises some of these rights explicitly as in the case of Article 12 on the right to health and Article 11 on the right to an adequate standard of living, which includes the right to adequate food. 24 Further, the Committee on Economic, Social and Cultural Rights (CESCR) has adopted general comments, which are non-binding but authoritative interpretations of certain provisions of the ICESCR. These include general comments on the rights to health, water and food. As a result, the rights to water, sanitation, and the environment form part of the right to health and/or the right to an adequate standard of living.

AMR is particularly complex from a rights perspective. On the one hand, access to essential medicines, of which antibiotics are one example, contributes significantly to the realization of the rights to life and health. 25 On the other hand, excessive use or misuse of antibiotics may lead to AMR and the denial of several human rights. In addition, improper disposal of antibiotic effluent/antibiotics through human waste into the environment could lead to the emergence of AMR in the environment and undermine the realization of the rights to life, health, food, livelihood, water, sanitation, and the environment, in the first instance, for individuals and communities living and working in the vicinity of the affected water bodies but later affecting the rights of other people because of the ability of AMR to travel from one medium to another as well as across domestic and national borders. However, neither law scholarship, 26 nor drafters of AMR regulation engage with the rights-based approach to AMR generally, 27 or with specific reference to the link between AMR and WASH. At the same time, realization of these rights is an important requirement for the implementation of the SDGs discussed in section 4(i) above.

A perusal of the general comments concerning the rights to health, water and food reveals opportunities for recognition of the link between AMR and WASH. According to General Comment 14 on the right to health, the term ‘improvement of all aspects of environmental and industrial hygiene’ in Article 12.2(b) of the ICESCR comprises the requirement to ensure an adequate supply of safe and potable water and basic sanitation and the prevention and reduction of the population’s exposure to harmful substances, such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health. 28 The emergence of AMR makes potable water less safe. Further, arguably, AMR can be described as ‘detrimental environmental conditions that directly or indirectly impact upon human health’. 29 .

General Comment 15 on the right to water recognises the different uses of water including personal and domestic uses, securing livelihoods, and realising the right to adequate food by ensuring sustainable access to water resources for agriculture. 30 It interprets ‘to ensure environmental hygiene’ in Article 12 of the ICESCR to encompass taking steps to prevent threats to health from unsafe and toxic water conditions. 31 This includes the protection of natural water resources from contamination by harmful substances and pathogenic microbes. Further, the obligations of the State corresponding to the right to health and the right to water include prevention or control of environmental pollution. This obligation extends to environmental pollution resulting from antibiotics discharged into the environment. Finally, the core content of the right to adequate food, as set out in General Comment 12, encompasses food free from adverse substances. 32 The term ‘adverse substances’ could extend to antibiotic-resistant genes.

A rights-based approach to AMR and WASH must also consider the interlinkages between rights. The lack or inadequacy of sanitation and measures for the realisation of the right to sanitation may pollute the environment, degrade environmental resources, and/or infringe other rights. 33 The right to sanitation includes treatment of human waste before reuse or disposal. Treated wastewater may be used to augment water supplies and to irrigate or fertilize crops, 34 thus promoting the realisation of the rights to water and food respectively. However, the right to water (which includes the right to subsistence agriculture at the very least) and the right to food itself may be violated where untreated or partly treated wastewater and wastewater residuals are used for irrigation.

5.2 (ii) Promise of Environmental Justice for AMR and WASH

International human rights law offers a good framework for considering AMR and WASH through the lens of individual entitlements. At the same time, it is constrained to an extent by its universalist framing, which is insufficient for addressing certain problems that perpetuate inequality, such as systematic discrimination against certain groups of people. In other words, an environmental justice perspective needs to be added to address the broader dimensions of equity that are not well captured through the lens of individual human rights. Environmental justice offers an entry point to consider the differential impact of economic and social policies on the least well-off and the most marginalised. It is also specifically framed around the idea that inequality cannot be effectively tackled by looking only at individuals and that the sum of individual harms is not necessarily equivalent to the harm to the whole affected community.

Some of the issues of particular concern regarding AMR and WASH are gender inequality and social inequality, such as caste inequality. They constitute central factors explaining differential access to medicines or differential burdens in ensuring access to water, such as where women bear the duty of fetching drinking water where it is not available through a tap within the house. Other issues include differential access to water, for instance, where some social groups get access to a given source of water only once others have met their own needs; differential access to sanitation in the case of women waiting for the cover of night to go out or refraining from going to a public facility because of the cost involved; and differential access to soap and to medicines.

Many of the issues arising in the context of AMR and WASH can only be effectively addressed by tackling inequalities. Environmental justice provides a way to link this with the rights framework. It highlights the need to consider not only whether the rules introduced are fair but also whether their application leads to results that are fair for everyone. Thus, the question is not only whether everyone has access to a toilet but whether everyone can effectively use them. Similarly, the issue is not only whether AMR can be reduced but also whether the most vulnerable to diseases that can be easily cured with antibiotics get access to the necessary medicines. Simply building sanitation infrastructure or reducing AMR will not necessarily foster substantive equality and ensure that the poorest and most marginalised preferentially benefit from the measures taken.