Judicial Enforcement of the Human Right to Water-Case Law from South Africa, Argentina and India

Article excerpt

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. …