Academic journal article The George Washington International Law Review

The Right to Water: The Road to Justiciability

Academic journal article The George Washington International Law Review

The Right to Water: The Road to Justiciability

Article excerpt

I. INTRODUCTION

Water is the spring of life. It is essential for living. The current state of water security, however, is bleak and does not reflect water's fundamental importance.

Today, unsanitary water is the cause of serious illnesses, such as diarrheal diseases, which kill over two million people each year.1 The World Health Organization (WHO) estimates that out of 6.6 billion people, the world's current population, at least 1.1 billion do not have access to sufficient and clean drinking water.2 In addition, lack of water adversely affects hygiene, food production, the keeping of animals, small scale economic activity, and many cultural and social activities.

The United Nations declared 2003 the "International Year of Freshwater" with the aim, inter alia, to reassert the U.N.'s Millennium Declaration Goal: "[t]o halve, by the year 2015, the proportion of the world's people . . . unable to reach or to afford safe drinking water"3 and "[t]o stop the unsustainable exploitation of water resources."4 Unfortunately, notwithstanding these lofty goals, the right to water has yet to become a binding human right. No international instrument or convention deals exclusively with water, and the international community has not signaled that such an instrument is being developed. Furthermore, few countries have taken concrete steps to address the importance of water in their national legislation and agendas.

Although the Vienna Declaration has reaffirmed economic and social rights, such as the right to water, as equally important as civil and political rights,5 there remains much criticism with regard to the implementation of such rights.6 Critics often refer to the nature of economic and social rights as an inherently positive obligation, requiring the State to enact legislation and programs that make these rights non-justiciable. For example, critics argue that the implementation of economic and social rights is often subject to lack of available resources and is not based on violations in the same sense as civil and political rights.7 In this connection, socioeconomic rights cannot bind States in the way civil and political rights can. Notably, economic and social rights are subject to the concept of progressive, not immediate, realization and are thus programmatic in nature. In addition, adjudication of socioeconomic rights by the judiciary will infringe on the other branches of government.8 Courts adjudicating these rights will inappropriately question issues of budget allocation and consequently infringe on the expertise of the legislative and executive branches when creating programs.9

This Article evaluates the status of water as a human right and addresses some of the major critiques of economic and social rights by demonstrating that it is possible to implement and ultimately adjudicate the right to water within a domestic context. Part II outlines the normative status of the right to water in international human rights law, including the Committee on Economic, Social and Cultural Rights' (CESCR) General Comment 15. In this regard, the Article highlights the link between the right to water and other human rights, such as the right to food. It also focuses on foreign and international case law addressing economic and social rights. Part III uses South Africa as a case study to illustrate how concrete steps might be taken at the domestic level to provide for the right to water. It discusses South Africa's approach to the right to water in light of General Comment 15 and some of the major challenges to providing for safe and accessible water, including justiciability, the availability of resources, and the separation of powers doctrine. In conclusion, the Article outlines some major challenges and recommendations concerning the right to adequate water.

II. THE NORMATIVE FRAMEWORK IN INTERNATIONAL, LAW

Placing access to water and water scarcity in a human rights law framework will achieve a number of important objectives. …

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