Academic journal article Harvard Law Review

What Price for the Priceless? Implementing the Justiciability of the Right to Water

Academic journal article Harvard Law Review

What Price for the Priceless? Implementing the Justiciability of the Right to Water

Article excerpt


Water, while possessing one universally agreed upon chemical definition, means different things to different people. Generally, one's conception of water is largely framed by the region of the world in which he or she lives. In the United States, for example, water is considered much like air: both are important in the abstract, but are so abundant that the value Americans ascribe to them is relatively low. (1) Water is present everywhere: in several rooms of every house, (2) in water fountains at schools, in fire hydrants lining the streets. People often take overlong showers, wash their hair every day, wash their cars on weekends, and allow faucets to run unnecessarily while washing dishes or brushing their teeth. At the end of the day, however, such uses cost Americans very little: they pay more for the Starbucks coffee (3) they drink in the morning than they do for the water they consume. (4)

The reality in the developing world is markedly different. In regions where access to potable water is scarce, such as Asia, (5) South America, (6) and much of sub-Saharan Africa, (7) the relative cost of purchasing water is high, and water takes on a radically different level of importance. When its general importance is coupled with scarcity, water's value increases exponentially, making it more comparable to gold or diamonds than to air, with the added weight of being necessary for survival. In this sense, there are few (perhaps no) other resources of equal importance.

The impact of water's increasing scarcity has grown more pronounced in recent decades, and so too has its importance in the public consciousness. Yet while many countries have paid lip service to a right to water, both in international treaties and in the flowery language of their constitutions, most of these statements have proven aspirational at best, with little enforcement action.

As a result of this seeming complacence, there has been a push both in the international community and within developing nations to advance the right to water a step further by recognizing it as justiciable, thereby allowing citizens to seek legal recourse when their water needs go unmet. (8) Two approaches to justiciability have predominated. The first approach, illustrated by the South African system, explicitly confers a justiciable, affirmative right of access to adequate water, a right enshrined in the country's constitution and upheld by the country's Constitutional Court. The second approach, exemplified by the Indian legal system, derives an implied justiciable right to water from the broader "right to life."

No legislative or jurisprudential solution can immediately solve the crisis of water scarcity. Although justiciability alone is not a panacea, it is a step in the direction of ensuring access to sufficient water. This Note argues, through the lens of South Africa's and India's existing jurisprudential methods, that certain forms of justiciability show more promise than others for achieving the goal of clean water for all. In particular, this Note argues that justiciability based on an explicit constitutional provision recognizing an affirmative right to water is preferable to a merely implied right to water. Developing nations seeking to achieve a justiciable right to water should follow the South African example rather than relying on the implied justiciability rights utilized in the Indian legal system. Part II provides some background regarding the (often understated) importance of water and the (often unperceived) epidemic of water scarcity in the developing world. Part III discusses both the deficiencies of the current international system governing water rights and the increasing importance of national recognition and justiciability of water rights in the developing world. Part IV provides a comparative analysis of the legal framework governing the justiciability of water rights in India and South Africa. …

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