Judicial enforcement of the human right to water--case law from South Africa, Argentina and India.

• Author: Winkler, Inga
• Position: Report

Abstract

Access to water is fundamental to human life and health. The human right to water finds increasingly recognition at an international level. Yet, the crucial question remains if and how the right can be enforced. As the legal enforcement of human rights primarily takes place at the national level, it is interesting to take a look at case law on the human right to water from different countries.

Case law from South Africa, Argentina and India has been selected for the analysis as all three countries have developed a remarkable body of case law. They have been following different models regarding the judicial enforcement of the right to water, thus allowing addressing the variability of options for judicial enforcement. Courts have dealt with a broad range of issues related to the right to water ranging from concerns over the availability of sufficient water resources over the lack of access to concerns over water pollution and cases of disconnections of water services.

In order to understand the scope of the judgments, the paper makes use of the common tripartite distinction of human rights obligations. States are obliged in different ways bearing duties to respect, to protect and to fulfil. The latter is often regarded to be the least justiciable. Yet, the paper includes judgments referring to all types of obligations thus showing that the obligation to fulfil the right to water has also proven to be judicially enforceable.

Keywords

Human right to water, Socio-economic rights, Judicial enforcement of human rights, Case law on the right to water, South Africa, Argentina, India

1. Introduction

   Access to water is fundamental to human life and health. Yet, 1.1 billion people do not have access to safe water and 2.6 billion people lack access to adequate sanitation facilities (World Water Assessment Programme 2006, p. 46). The human right to water could be a means to improve this situation by giving people the possibility to claim to have access to water and sanitation. During the last years, it has increasingly found recognition at the international level. It is not explicitly acknowledged in the International Covenant on Economic, Social and Cultural Rights (hereafter Social Covenant), but can be derived from other treaty provisions, in particular Art. 11(1) that guarantees the right to an adequate standard of living (Gleick 1998, p. 491; McCaffrey 1992, p. 11; Riedel 2006, p. 596; Smets 2002, p. 28). Moreover, the right to water is explicitly mentioned in the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. The issuance of the General Comment No. 15 on the right to water by the Committee on Economic, Social and Cultural Rights (hereafter CESCR) in November 2002 was a major push for the increasing acknowledgement of the right to water.

   The question remains whether these pronouncements on the right to water are only lip-service or whether it is a judicially enforceable human right. By establishing a reporting procedure to the CESCR, the enforcement mechanisms of the Social Covenant are rather weak (Simma 1998, p. 875). And even with the adoption of the Optional Protocol to the Social Covenant within reach, the enforcement of human rights at the international level is only subsidiary and is subjected to the exhaustion of local remedies. Primarily, the judicial enforcement of human rights takes place at the national level. The article therefore aims to analyse if and how the right to water can be enforced through national jurisprudence.

   Case law on the human right to water can be observed in a great number of countries ranging from France, Great Britain and Belgium over Costa Rica and Brazil to Malaysia and Indonesia. This paper focuses on case law from South Africa, Argentina and India as these three countries can be regarded as representing three different models of judicial enforcement of the human right to water (cf. Note 2007, pp. 1068 et seq., 1079). All three countries have developed a remarkable body of jurisprudence.

   South Africa is one of the few countries that have explicitly recognised the human right to water in their Constitution along with other socio-economic rights. A number of other countries have also explicitly acknowledged the right: Uganda has included the right to water in its Constitution in 1995 (Art. 14), Ecuador in 1998 (Art. 23 and Art. 42), Uruguay in October 2004 after a successful referendum and the Democratic Republic of the Congo in 2006 (Art. 48). Moreover, there are efforts to include the human right to water in the Belgian (1), Bolivian (2), Colombian (3) and Kenyan Constitution (4). As South Africa's explicit incorporation of the right to water and the case law dealing with it have raised considerable attention, it can serve as a model for other countries that explicitly recognise the human right to water.

   Without being able to rely on a specifically guaranteed human right to water in the national Constitution, Argentinean courts have also developed an extensive body of case law on the right to water mainly by deriving it from the right to a healthy environment. Such an approach is common in Latin America, as for example courts in Colombia and Costa Rica have been taking similar approaches to adjudicate the right to water.

   Whereas South Africa has explicitly recognised the right to water in its Constitution and Argentina has at least included an explicit right to a healthy environment, courts in India started from the right to life in order to derive the right to water. Indian jurisprudence on environmental rights is regarded as one of the most extensive and innovative (Anderson 1996, p. 199) and it can be regarded as a model for other Asian countries. For example, courts in Bangladesh, Pakistan and Nepal have taken an approach very similar to the one in India deriving the right to water from the right to life (Razzaque 2002, pp. 9 et seqs.; cf. as well Lau 1996, pp. 296 et seqs.).

   It will be shown that despite starting from legal provisions that show great differences, courts in all three countries have developed a quite extensive body of jurisprudence dealing with the right to water. A wide range of issues relevant for the realisation of the right to water has been addressed by courts in common law as well as civil law systems. In South Africa, the lack of access to water supply, disconnections and the installation of prepayment metres are perceived as major problems (Mehta 2005, p. 4; Francis 2005, p. 151), whereas water pollution is one of the major threats in Argentina and India (Anderson 1996, p. 199; Note 2007, p. 1082; Muralidhar 2006, pp. 70 et seq.). The different awareness of water issues is reflected in the cases courts had to deal with.

   In order to understand the scope of the judgments that will be analysed, it is important to note the common tripartite distinction of different human rights obligations. States are obliged in different ways by human rights bearing duties to respect, to protect and to fulfil. This concept was first developed by Shue (1980) and has become widely used, eg by the CESCR and in section 7(2) of the South African Constitution.

   Obligations to respect require States to refrain from interfering with the enjoyment of human rights. These obligations thus aim at ensuring that existing human rights guarantees are not violated (Craven 1995, p. 109; Eide 2001, p. 23). In the case of the human right to water they become particularly relevant when existing access to water is not respected, ie in cases of disconnection of water supplies.

   Obligations to protect refer to the duty of States to prevent third parties from interfering with the enjoyment of human rights (Craven 1995, p. 109; Eide 2001, p. 24), in this case the human right to water. States are required to take the necessary measure to prevent third parties from undermining the rights of others. These obligations are for example relevant in form of the duty to protect people from the pollution of water resources committed by third parties. Moreover, they become relevant in the case of water service privatisation. States have to ensure that private supply of water services does not compromise access to water by establishing an effective regulatory system (CESCR 2002, Para. 24). In so far, the result the State has to ensure is the same as in regard to obligations to respect: the right to water must not be infringed. However, the measures the State has to take differ as the State does not act itself as water supplier in the case of privatisation, but then has to act as a regulator.

   Obligations to fulfil require States to adopt the necessary measures directed towards the full realisation of human rights (Craven 1995, p. 109; Eide 2001, p. 24). Primarily, States are obliged to enable and assist people in gaining access to water services. In general, every individual is expected to use his or her own efforts and resources for the satisfaction of basic needs (Eide 2001, p. 23). Only when people do not have the means to attain water services for themselves, the State is required to take the necessary measures of direct provision, in particular to ensure that water is affordable to everyone. This can be achieved by subsidisation mechanisms or even supplying water free of charge in order to ensure access to a minimum essential level of water (CESCR 2002, Para. 25, 27).

   Still, due to these far-reaching obligations that require positive and often resource intensive measures (cf. Liebenberg 2001, p. 58), the obligation to fulfil is regarded to be the least justiciable. It seems easier to affirm the justiciability of obligations to respect and to a certain extent obligations to protect as they give rise to negative obligations (Budlender 2004, pp. 35, 38). Yet, it will be shown that this is not necessarily the case as Courts have not shied away from considering obligations to fulfil the right to water.

   In this...