Can Water be a Human Right?

• Author: Kirsten Snell
• Position: Is a J.D. candidate at the University of Victoria, and is completing her final semester of law school at Hong Kong University
• Pages: 131-149

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ARTICLE

CAN WATER BE A HUMAN RIGHT?

Kirsten Snell*

CITED: (2014) 19 Appeal 131–149

INTRODUCTION

In 2002, the United Nations Committee on Economic, Social and Cultural Rights

(CESCR) published General C omment No. 15 (Comment 15).1 Comment 15 gave non-

legally binding re cognition to the right to water, and outlined obligations and gu idelines

for implementing this right.2 Comment 15 was followed in 2010 by a United Nations

(UN) General Assembly Declaration recognizing “the right to safe and clean drinking

water and sanitation as a human right that is essential for the full enjoyment of life and

all hu man rights.”3 One hundred t wenty-four nations voted in favour of the declaration,

forty-one abstained, and none were inclined to political suicide by voting against it.4

United States deputy representative to the E conomic and Socia l Council, John Sammis,

explained that his country abstained from voting because “the legal implications of

a declared right to water have not yet been considered.”5 More than three years later,

Sammis’ statement holds true .

ere have been two main approaches taken by nations in crafting a human right to

water which will be d iscussed in Parts I and II of t his paper. First, the derivative approach

recognizes a se condary human right to water a s necessary to ful lling primary ec onomic,

social, or political ri ghts. An example is found in Bots wana where courts have recogniz ed

an implied right to acce ss water deriving from the primar y right of any owner or occupier

of land to sink or deepen a borehole or well and to ex tract water for domestic purposes.6

e second approach recognizes an independent positive human right to water.7 is

approach has been tak en in South Africa where the right to have ac cess to sucient water

was granted constitutional protection.8

* Kirsten Snell is a J.D. candi date at the University of Victoria , and is completing her nal semester

of law school at Hong Kong Univer sity. She will be articling at Blake, Casse ls & Graydon LLP

in Vancouver during 2014 – 2015. This paper was originally written unde r the supervision of

Professor Deborah Curran f or her course in Water Law, co-taught with Oli ver Brandes. Kirsten

thanks Professor Curran an d the Appeal Board for their feedb ack and guidance.

1 General Comment No.15: The Right to Water (Arts. 11 and 12 of the Covenant), UNCESCR, 29th Sess,

UN Doc E/C.12/2002/11, (2003) [Comment 15].

2 Ling-Yee Huang, “Not Just Another Drop in the Human Right s Bucket: The Legal Signicance of a

Codied Human Right to Water” (200 8) 20:3 Fla J Int’l L 353.

3 The Human Right to Water and Sanitation, GA Res 64/292, UNGAOR, 64th Sess, UN Do c. A/64/L.63/

Rev, (2010) at 2.

4 Jacob Mchangama, “Counterpoint: Water is the Wrong Right ”, The Globe and Mail (5 August

2010), online: The Globe and Mail com/commentary/

counterpoint-water-is-the-wrong-right/article1375870/>.

5 Mchangama, supra note 4.

6 The Water Act, Botswana, c-34:01,s 6.

7 Erik Bluemel, “The Implications of For mulating a Human Right to Water” (2004) 31 Ecology LQ

957.

8 Constitution of the Republic of South Africa, 1996, No 108 of 1996, ss 27(1)(b) and (2).

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On the surface, adding water to the roster of internationally recognized human rights,

as urged by the UN High Commissioner for Human Rights (UNHCHR), seems

unobjectionable: with statistics from the World Health Organization (WHO) that over

one billion people lack access to safe drinking water and 2.5 billion lack the adequate

sanitation necessary to reduce exposure to water related diseases, a human rights

approach to water entitlements has an im mediate appeal as a means of al leviating human

suering.9 However, case law from Botswana and South Africa has demonstrated that

recognizing the existence of a human right to water does not account for the means

of implementing or remedying violations of the right. ere is little indication that

establishing t his right has led to substantive cha nges in government obligations or access

to water in those countries in a manner otherwise unachievable under a more exible

property rights approach t hat frames water as an independently e xisting entity, the access

and usage of which may b e granted, transferred, or removed as appropriate.10

In contrast to religion, fair trials, or equality, water has not been successfully shaped

into a human right because it is not a human creation. It is an invaluable natural entity

necessary to sustain all living creatures and systems on the planet. Humans may better

organize our ow n use of water through licensing or permitt ing systems based in propert y

rights regimes and limit that use by acknowledging ecosystem needs. Prioritization of

competing uses a nd regular interference with water rights w ill be essential because water

is a scarce natural resource; as such, it is inappropriate to deem water a human right,

which by denition would place it among “rights i nherent to all human beings…[which

are] interrelated , indivisible…and inalie nable.”11

While there is an impetus from international organizations to create a human right to

water, this paper will not focus on the international legal recognition of such a right.

Instead, this paper explores the ways in which i ndividual states are shaping this right in

domestic law. It will demonstrate that a human rights framework is not an appropriate

vehicle for managing natural resources or expanding water supply to those in need by

examini ng both the derivative and independent human right approaches. e d iscussion

of each approach will contain an analysis of the legal foundation of that human right,

a denition of the substance of the right, and a case study where the right has been

recognized in that manner. To provide a broad overview of the topic, this paper will

refer to statistics on globa l water usage and the cost of providing water as we ll as aspects

of water rights regimes in countries including Botswana, South Africa, India, Bolivia,

Canada, a nd the United States.

9 Oce of the High Commissioner for Human Rights , Report on the scope and content of relevant

human rights obligations related to equitabl e access to safe drinking water and sanitation under

international human rights instruments, UNHCHR, 6th Sess, UN Doc A/HRC /6/3, (2007); WHO,

“Health through safe dri nking water and basic sanitation” (2014), online:

water_sanitation_health/mdg1/en/>.

10Common propert y rights approaches that utilize per mitting systems include: i) Prior Al location

(transferable licences to cer tain allocations of water from a give n source governed by priority

of registrations); ii) Public Authorit y Management (“use it or lose it” p ermits governed by water

boards); iii) Riparian Rights (owner of l and bordering water source is entitled to a ccess water

ow in its natural quantity a nd quality for limited uses); and iv) Civil Codes (non -transferable use

permits granted by vario us government ministries): see Randy Chris tensen and Anastasia Litner,

“Trading Our Common Herita ge?: The Debate over Water Rights Transfers in Canada” in Kar en

Bakker, ed, Eau Canada: The Future of Canada’s Water (Vancou ver: University of British Columb ia

Press, 2007) 222 at 223.

11Oce of th e High Commissioner for Human Rights , What are Human Rights? (2012) online: United

Nations Human Rights

[What are Human Rights].

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I. THE DERIVATIVE RIGHT APPROACH

e derivative approach creates a subordinate human right to water implied within a

primary rig ht, which may be another human, legal, politica l, economic, or socio-cultural

right. e idea that a huma n right to water can be derived through ot her rights arises from

the basic understanding that humans require water for nearly all of our activities, from

cleaning and cooking to drilling for oil and manufacturing cars.12 Following this logic,

the human right to life a s entrenched in section 7 of the Canadian Charter of Rights and

Freedoms (“Charter”)13 cannot be exercised unless one ha s access to life-sustainin g water.

A human right to water could be derived from a wide range of recognized primary

rights. Comment 15 states that “[t]he human right to water […] is a prerequisite for the

realization of other human rights.”14 is includes the right to life, liberty and security

of the person under the Universal Declaration of Human Rights.15 e International

Covenant on Economic, Social and Cultural Rights(“ICESCR”) includes the rights to

make a living by work and to t ake part in cultura l activities, the right to develop, and the

right to adequate food, al l of which may imply a subordinate right to water.16 Comment

15 would require states to provide water to meet the core obligations of each of the

ICESCR rights, includi ng a sucient amount of clean water, safely accessible to all, at a

low cost with proper monitoring and a plan of action.17 It would obligate States to take

positive measures to assist individuals and communities to enjoy the right to water.18

e CESCR noted that the rig ht to health under the Inter national Bill of Human Rights

would require improvement of environmental hygiene, which implicates safe drinking

water, protection of bodies of water from contamination, and water to clean up waste.19

Although statements from the CESCR are not legally binding, countries including

South Africa and Botswana have utilized the language contained in Comment 15 to

recognize a huma n right to water.20

e UN Economic and Socia l Council (ECOSOC) estimated the mi nimum amount of

water required for subsistence is 7.5 litres per day (L/day), which would cover only food

incorporation and hydration, or 50 L/day to also account for sanitation and hygiene.21

e amount of water required for ensuring good health, if that is to include hygiene,

is far more than that needed to satisfy the right to food. ese are both far less than

the amount of water needed to satisfy the ICESCR right to “develop” if that implies

industrial development,22 which is unclear from the wording of ICESCR.23 Given the

dierent quantities of water required for the broad range of activities contemplated by

12Dan Shrubsole & Dian ne Draper, “On Guard for Thee? Water (Ab)uses and Manage ment in

Canada” in Bakker, ed, supra no te 10 at 40.

13Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to

the Canada Act 1982 (UK), 1982, c-11, s 7 [Charter].

14Comment 15, supra note 1 at para 1.

15Ibid.

16International Covenant on Economic, Social and Cultural Right, 16 December 1966,GA Res 2200A

(XXI) (entered into force 3 Januar y 1976), arts 6(1), 15(1)(a), 11(1), 1(1) [ICESCR].

17Comment 15, supra note 1 at para 37.

18Ibid at para 25.

19General Comment No.14: The Right to the Highest Attainable Standard of Health, UNCESCR, 22nd

Sess, UN Doc. E/C.12/2000/4 (2000) at 3-5, 11-13, 15.

20See Part I-A and Part II- E below for more on this topic.

21 Huang, supra note 2 at 357.

22ICESCR, supra no te 16.

23“Development” in this paper sign ies the presence of sophisticate d industry and infrastruc ture

within a nation. This include s the presence of manufacturing o r resource extraction pra ctices

that tend to require large amounts of water, and transportation infrastructure capable of reliably

delivering water to various users. See Shrubsole & Draper, supra note 12.

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the ICESCR, and the li mited nature of water as a resource, the derivative r ight approach

would require a hierarchy for determining which political, economic or socio-cultural

rights should be provided for rst. Yet an underlying human right to water would be

incompatible with hierarchy because a human right is intended to be indivisible and

non-discriminatory.24

Even if the derivative human right to water could be limited to a few primary ICESCR

rights like adequate food or health, allotments would have to be tailored to dierent

regions in a country for t he same right. For example, the water needed to produce a dequate

food varies with grow ing conditions, climate, and landscape , while the amount of water

needed for health depends on climate and population, among numerous other factors.

To avoid human rights violations and to provide an adequate amount of water for each

activity would require historical knowledge and predictions of water availability each

year, information that even a wealthy and developed country like Canada lacks.25 Any

prediction is subject to environmental c onditions beyond human control or knowled ge,

and in any given year the available water may be so little as to render meaningless a

specic entitlement to a nite resource t hat belongs to the entire population of a country.

When the UN General Assembly issued its 2010 declaration that the right to safe and

clean drink ing water is a right that is essenti al for the full enjoyment of life and al l human

rights,26 Canada, the United States, Australia, and Britain were among the countries

that abstained from adopting the non-binding resolution.27 In eect, these countries

refused to ack nowledge the recommendation as a valid approach to real izing legal rights

to water. e United States’ representative to ECOSOC, John Sam mis, explained that

[t]his resolution describes a right to water and sanitation in a way that is

not reective of existi ng international law; as there is no “right to water and

sanitation” in an internationa l legal sense as described by this re solution.28

Sammis’ response to the declaration typies the weakness in the derivative approach

to recognizing a human right to water. e derivative approach is burdened by the

questionable existence of positive oblig ations on governments to satisfy primar y rights. It

also demands that governments prioritize primary human rights by determining which

rights require water for their fullment. ese issues are illustrated in the Botswana

case of Matsipane Mosetlhanyane and Gokenyatsiwe Matsipane v. Attorney General

(“Matsipane”),29 where a human right to water was recognized in order to overcome

discriminator y practices by a government against occupiers of wi ldlife reserve land.

A. The Derivative Approach in Botswana

In 2011, the Botswana Court of Appeal quashed a prior ruling t hat denied the Basarwa

(also known as Kalahari Bushmen) access to water on their ancestral lands located in

24What are Human Rights,supra no te 11.

25Shrubs ole & Draper, supra note 12 at 47.

26The Human Right to Water and Sanitation, supra note 3.

27 Mchangama, supra note 4.

28John F S ammis, “Explanation of Vote by John F Sam mis, US Deputy Representative to th e

Economic and Social Council, on R esolution A/64/L 63/Rev 1, the Human Right to Water ”,

Explanation, (PRN 2010/155), 28 July 2010, online: United States Mission to the United Nations

s/2010/145279.htm>.

29Matsipane Mosetlhanyane and Gokenyatsiwe Matsipane v Attorney General (2011), Civil Appeal

No CACLB-074-10 (Bots), online: Global Health and Huma n Rights Database

globalhealthrights.org/africa/matsipane-mosetlhanyane-ors-v-the-attorney-general/>

[Matsipane].

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the Central Kalahari Game Reserve (CKGR).30 In 1961, the CKGR was established

to conserve wildlife and provide residence for the Basarwa, who formed permanent

hunter-gatherer settlements there.31 In 1986, the De Beers diamond company agreed to

allow Basar wa residents to use a borehole that the company had sunk at Mothomelo for

gathering water.32 e government maintained the engine of the borehole pump from

1986 – 2002.33

In 2002, the government evicted the Basarwa from the CKGR after issuing a policy

statement that the reserve existed solely for the purpose of wildlife conservation.34 e

new policy deemed that human settlements were incompatible with that purpose, and

bringing water inf rastructu re into the area would seriously compromise fau na conservation

eorts.35 During relocation of the Basarwa, the pump engine and water tank built into

the borehole were dismantled, and the borehole was sealed.36 e court speculated that

these change s were likely done to induce the Basarwa to move, a lthough many eventually

returned to their settlements.37 e court called the ordeal, which persisted for several

years, a “harrowing story of human suering and despair from the shortage of water in

a harsh climate.”38 e government’s action to decommission the borehole resulted in

Basarw a residents becoming “weak and vul nerable to sickness,” and forced them to spend

their days searc hing the bush for melons containing traces of water.39

e Basarwa took the government to court, arg uing that they had a right under section

6(1)(a) of Botswana’s Water Act to re-commission or sink new boreholes at their own

expense to take and use water for domestic purposes by virtue of their occupation or

ownership of the land.40 In accordance with section 6, the Basarwa were not seeking

a right to abstract at will unlimited quantities of water from an unspecied number

of boreholes, but rather to use an existing or new hole.41 As such, they reasoned that

section 9 of the Water Act, which forbids t aking water without an authorized water r ight,

would not apply.42 Importantly, the Basar wa argued that being denied acc ess to water for

domestic purposes would ma ke their occupation of the land meaning less.43 e Basarwa

also claimed that the government violated section 7(1) of the Constitution of Botswana

(1966)44by subjecting them to “ inhuman or degrading punishment or tre atment.”45

In response, the government argued that the well was not a borehole as dened under

the Wat er Act but that it was a “prospecting hole” drilled for mineral prospecting a nd it

was never meant to provide water to anyone.46 e government argue d that, with section

6 being subject to section 9, the owner or occupier of land intending to sink or deepen

wells or boreholes to take water for domest ic purposes could only do so with a water right

30Ibid.

31Ibid at para 4.

32Ibid at paras 4-5.

33Ibid at para 5.

34Ibid at para 6.

35Ibid.

36Ibid at para 7.

37Ibid at paras 6-7.

38Ibid at para 4.

39Ibid atpara 8.

40Ibid atpara 13.

41Ibid at para 14.

42The Water Act, supra note 6, ss 6 and 9.

43Matsipane, supra note 29 at paras 14-16.

44Constitution of Botswana (196 6), BW A-010 , 196 6,s 7 (1).

45Matsipane, supra note 29 at para 19.

46Ibid at para 9.

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granted under the Act.47 e Bas arwa had therefore violated section 9 by fa iling to obtain

a water right to use the borehole.48

e court cited the decision in Sesa na and Others v. A Attorney Genera l (2006 ),49 a related

case brought by one of the same applicants in Matsipane, to support their nding that

the Basar wa were wrongly deprived of possession of their settlements. e court further

held that the government had acted unlawfully and unconstitutionally by denying the

Basarwa permits to enter the land.50 e borehole had ceased being a prospecting hole

after being converted for domestic purposes for the benet of the community, and

there was no legal ba sis for denying access or sealing it.51 e court a lso agreed with the

appellants’ statement that oc cupation rights without water rights would be meaning less:

[i]n a country in which an occupier of land may have to drill beneath

it to nd water he and his family will need if they are to live there, it is

unsurprising that Parliament should have decided that he should have an

‘inherent’ right to do just that.52

eir “inherent” right to access water was deemed absolute and unqualied, and the

court held that the Basarwa did not need authorization to take water.53 is language

suggests that the court granted a human right of access to water underlying the right

to occupy land rather than a property right to use or own water.54 e language in the

decision that permits access to water for domestic purposes is consistent with a human

rights approach to water as it was g ranted to allow families to live a nd survive in the area

that they occupy.55 e court acknowledged that Comment 15 guided their judgment,

and quoted the General Assembly recognition of the right to safe and clean drinking

water as a fundamental human right essential for the full enjoyment of life and all

human r ights.56

is ruling shed light on how courts may address the issue of access to water when

applicants live in areas where water is naturally scarce. In reference to the section 7(1)

claim, the court agreed that the Basarwa were subjected to inhuman or degrading

treatment in being denied perm ission to use or sink a borehole, at their own expense, for

domestic purposes.57 is nding overruled the trial judge’s holding that the Basarwa

had brought whatever hards hips they suered upon themselves by “free ly choosing to go

and live where there was no water.”58

One problem with this judgment is the incongruity between the acknowledgment of

a human right underlying the primary right to occupy land and the apparent lack of a

positive governmental obligation to provide essential services. Although it was held by

the court that t he Basarwa had the ri ght to use the borehole, the Basarw a asserted that use

would be at their own expense, and in fact conceded to the respondent’s argument that

47Ibid atpara 13.

48Ibid.

49Sesana and Others v Attorney General (2006) (2) BLR 633 (HC); (2006) AHRLR 183 (BwHC 2006).

50Matsipane, supra note 29 at para12 .

51Ibid at paras 17-18.

52Ibid at para 16.

53Ibid at para 19.

54Bonol o Ramadi Dinokopila, “The Rig ht to Water in Botswana: a review of the Matsipane

Mostlhanyane case” (2011) 11:1 Afr Hum Rts L J 282.

55Matsipane, supra note 29 at para 16.

56Ibid at para 19.

57 Dinokopila, supra note 54 at 291.

58 Matsipane, supra note 29 at para 10.

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the government was under no obligation to restore the provision of basic and essential

services to residents of t he CKGR, following Sesana.59 erefore, the government would

be barred from inicting suering by depriving citizens of self-nanced access to water,

but it need not take initiative to prevent suering from lack of water. It appears the

court has recognized a negative human right to water where one might expect a positive

obligation on the government to provide water to protect citizens from inhumane

conditions.

Legal scholar Bonolo Dinokopila suggests that the life threatening eects of the state’s

decision to seal the borehole without authority gives a moral basis for recognizing a

human right to water.60 However, the ruling in Matsipane was founded on the concept

that an occupier of land needs to access water for the survival of his family. is reveals

a reliance on the language of property rights even where moral considerations gure

prominently. While this avoids a revolutionary expansion of human rights, it oers a

pragmatic solution to a physical problem withi n the bounds of existing law: courts may

recognize th at a property rig ht to land contains a proper ty right to water.

Human rights exist as a category of rights intended to be inalienable, necessary, and

of such basic importance that they are unchanging,61 yet a court’s binding judgments

are subject to appeal. As the court in Matsipane implied by declining to reopen the

Sesana ruling against a government obligation to provide essential services, there is a

democratic decit in allowi ng judges to read-in an underlying right and t hen dictate that

the government must implement it. is criticism is especially true when the provision

of services requires going beyond court expertise to policy making centred on how to

obtain, manage , and pay for a scarce natural res ource like water. However, the ambiguity

that accompanies a jud ge-made derivative human right to water could be avoided by the

creation of a human right to water th at stands on its own authority.

II. THE INDEPENDENT RIGHT APPROACH

An independent human right to water could be initiated in the legislative branch of

government and applied broadly to a range of water-based activities. Benets of

explicitly acknowledg ing a human right to water, according to Peter Gleick of the Pacic

Institute, include encouraging and pressuring governments to meet basic water needs

of their populations, and identifying minimum water requirements and allocations for

parties within a particular watershed.62 is approach, which would marry the natural

environment directly to human need with no possibility of divorce, faces inherent

conceptual and remedial challenges. A description of various types of rights and their

attendant remedies by law and economics scholar Guido Calabresi provides a useful

framework for evaluat ing these challenges.63

Calabresi notes that rights are protected either by property, liability, or inalienability

rules.64 Interference with a right would be appropriate in the realm of property rights,

which “involve a collective decision as to who is to be given an initial entitlement” and

then permit removal of the entitlement throu gh a voluntary transaction.65 A n inalienable

59Ibid at para 18.

60 Dinokopila, supra note 54 at 290-292.

61What Are Human Rights,supra no te 11.

62Peter H G leick, “The Human Right to Water ” (2007) 41 Economía Exterior 1, online: Pacic

Institute .pdf>.

63Gui do Calabresi & A Douglas Melamed, “ Property Rules, Liabili ty Rules, and Inalienabilit y: One

View of the Cathedral” (1972) 85:6 Harv L Rev 1089.

64Ibid.

65Ibid at 1092.

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right such as a human r ight “is inalienable to the extent that its tr ansfer is not permitted

between a wil ling buyer and a willing seller.”66

Permitting interference with a r ight to water seems misplaced in a human rights c ontext

as human rights a re absolute and indivisible. Comment 15, however, can be interpreted

as permitting interference with an individual’s right to water as it notes that states or

third parties must consult with and give notice of actions to aected individuals prior

to the interference with their rights.67 CESCR may have included this statement in

Comment 15 because the state must be able to regula rly interfere with rights to resources

that exist independently as natural, tangible entities both to deliver and manage them.

is is particularly true where resources are scarce due to environmental factors be yond

human control. However, this indicates that water rights do not t comfortably within

a human rights regi me.

If rights are dependent on the rules and remedies that accompany them, as Calabresi

suggests, then a right without remedy is no right at all.68 e remedies identied in

Comment 15 to address violations of the human right to water include “adequate

reparation, including restitution, compensation, satisfaction or guarantees of non-

repetition” by the national or international judiciary.69 It follows that a human right to

water must be adequately dened a nd provide for immediate remed ial action in order to

have any meaning. A huma n right to a substance necessar y for life requires actual mea ns

of quickly resolving dec iencies in water availability and criteria for determi ning what is

meant by deciency.

As Gleick notes, a human rig ht to water cannot imply the right to an unlimited a mount

of water, nor does it require that water be provided for free.70 It will be limited by

resource scarcity, the need to maintain natural ecosystems, and economic and political

factors. As such, it may only be applied to sat isfy basic needs for drinki ng, cooking, and

“fundamental domestic uses.”71

Despite the challenges noted above, Comment 15 provides a framework for countries

seeking to implement an independent positive human right to water through its

recognition of four key factors. e se are dened by the statement that e veryone is entitled

to (1) sucient, (2) safe and acc eptable, (3) physically ac cessible, and (4) aordable water

for personal and domestic uses.72 is section explores the substance of the four factors

to shed light on issues with t he denition and implementation of thi s right.

A. Sucient Supply

Water supply for each person must be sucient and continuous for personal a nd domestic

uses, according to Comment 15.73 ese uses include drinking water, human waste

disposal, clothes washing, food preparation, and personal and household cleanliness.

Comment 15 acknowledges “some individuals and groups may also require additional

water due to health, climate, a nd work conditions.”74

66Ibid.

67Comment 15, supra note 1 at para 56.

68Calabresi & Melamed, sup ra note 63.

69Ibid at para 55.

70 Gleick, supra note 62 at 4.

71Ibid at 4.

72Comment 15, supra note 1 at para 2.

73Ibid at para 12(a).

74Ibid.

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e estimated minimum amount of water required for subsistence according to

ECOSOC is 7.5 L/day, which covers only food preparation and hydration, or 50 L/day,

which accounts for sanitation and hygiene.75 e WHO gives a higher estimate of at

least 50 – 100 L/day for each person.76 According to Sh rubsole and Draper, in 2006 each

Canadian used an incredible 4400 L/day “to support our lifestyle,” with about 343 L/

day allotted specically to personal domestic use.77 In France and Sweden, individuals

use only 150 L/day and 200 L/day respectively.78 is extreme variat ion in the quantities

that individua ls in dierent countries would consider necessa ry for fullling basic need s

explains the lac k of specicity in this category wit hin Comment 15.

If water is recognized as an independent human right in water-poor countries like

Botswana, wh ich has only about 2.4 cubic kilometers (km3) of internal renew able water

resources per year for a population of about 1.8 million,79 governments would have to

nd alternative means of supplying the guaranteed quantities of water to their citizens.

ey may turn to bulk exports from countries like Canada where there is a perceived

abundance of water, and an average internal annual renewable water resource of 2850

km3 for a population of 34 mi llion.80

Whether a country is considering bulk exports or determining the minimum amount

of water necessary to satisfy basic human needs, a metering or usage monitoring system

would likely have to be implemented to determine su cient supply. According to a 2009

report by the Organisation for Economic Cooperation and Development (OECD),

governmental expenditures on water infrastructure in OECD countries averaged

$11.9billion during 2006.81 While it would be a valuable long-term investment that

could be used as a cons ervation tool, the cost of building and mainta ining such a system

could be a large burden in c ountries that lack infrast ructure for extracting a nd purifying

water, let alone measuring indiv idual use.

e Klamath Basin dispute in northern California82 demonstrates scarcity issues more

commonly faced in developed nations, and illustrates the ecacy of property rights

regimes for protecting access to water. Although the parties in the dispute were not

arguing over water supply for basic domest ic uses as in Matsipane, poor water quality in

the basin had an i mpact on water availa ble for both basic and other need s.83

Over-allocation of water, changi ng hydrology, and several hydro-electric da ms negatively

aected both the quality and quantity of water in the Klamath River.84 ese changes

75 Huang, supra note 2 at 357.

76David R Boyd, “The Right to Water: A B rieng Note” (2011) InterAction Council: The Global Water

Crisis, citing J Bartram and G H oward, Domestic Water Quantity, Service, Level and H ealth, Geneva:

World Health Organizatio n (2003) at 2.

77Shrubs ole & Draper, supra note 12 at 39.

78Ibid.

79K aren Frenken, ed, “Irrigation in Afric an in Figures: Aquastat Survey 2005” (2005) 29 FAO Water

Reports at 50-51, online: AQUASTAT – FAO’s Information System on Water and Agriculture

.

80AquaStat, “Countr y Fact Sheet: Canada” (2014), online: AQUASTAT – FAO’s Information System

on Water and Agriculture. /aquastat/data/cf/readPdf.html?f=CF_

CAN_en.pdf>.

81 OECD, Managing Water for All: An OECD Perspe ctive on Pricing and Financing, OECD Studies on

Water,(2009) at 42, online: OECD Publishing Free Previ ew

Asset-Management/oecd/environment/managing-water-for-all_9789264059498-en>.

82De borah Curran & Oliver M Brandes, “ When the Water Dries Up: Lessons from the Failure

of Water Entitlements in Canada, T he US and Australia” (11 June 2012), online: POLIS Water

Sustainability Project .

83Ibid.

84Ibid at 7.

140

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signicantly impacted the ability of Indigenous communities to exercise their senior

tribal right to sh given a major decline in salmon population.85 Junior agricultural

licence holders were unable to obtain sucient water for irrigation due to the decreased

supply of water.86 After years of shortage and litigation, Indigenous and agricultural

rights holders negotiated the Klamath Basin Restoration Agreement in 2010.87 e

agreement maintained the property rights-based system of prior allocation, but re-

allocated water for sa lmon habitat restoration and granted agricu ltural users fty perc ent

of the forecasted supply for April to September, though they were legally entitled to

greater supply.88 Finally, the agreement provided a dispute resolution mechanism to

resolve any future con icts.89

e Klamath Basin dispute showed that “at the appropriate scale, people prefer to

cooperate to solve conicts over entitlements to and the use of resources rather than

resort to legal rules and litigation.”90 While priority rules attached to property rights-

based licencing reg imes may fail to resolve disputes bet ween competing interests through

litigation, they provide a basis for negotiation. Successful negotiation relies upon

exibility and wel l-dened interests, and can be a valuable mea ns of addressing scarcity,

particularly in cases where governments cannot adequately dictate what supply will be

available for a large group of st akeholders.

B. Safe Water

According to Comment 15, safe water for domestic or personal use must be “free from

micro-organism s, chemical substance s and radiological haz ards that constitute a th reat to

a person’s health.”91 It should be of an “acceptable” color, odour, and taste, as determined

by WHO drink ing water guidelines.92 While w ater quality may be conceived as a problem

facing underdeveloped countr ies like Botswana, it is a live issue on C anadian soil as well.

Safe water guideli nes in Canada are set bot h federally and provincia lly, through provincial

legislation such as the Drinking Water Protection Act in BC,93 and federally through

non-binding guidelines set by Health Canada.94 Provincial standards for potable water

recognize fecal coliform, e. coli, and total coliform,95 but do not address other potential

health risks which may be present due to environmental factors in dierent locations

aected by local industry or climate. Furthermore, insucient funding, vast distances

between sources , and poor central monitoring have resulted in frag mented management

of thousands of water supply systems in BC.96 e consequences of a lack of federally

binding guidelines are felt most distinctly by First Nations communities in Canada; a

Health Canada report found that in 1999 water borne disea ses like shigellosis, hepatitis

A, and giardia sis, were respectively 20 times, 12 time s, and 2 times worse on reserve than

85Ibid at 8.

86Ibid at 7.

87Ibid at 8.

88Ibid.

89 Ibid.

90Ibid.

91Comment 15, supra note 1 at para 12(b).

92Ibid.

93Drinking Water Protection Act, SBC 2001, c-9.

94Health Cana da “Guidelines for Canadian Drink ing Water Quality – Summary Table” (2012), online:

Health Canada -sum_guide-res_

recom/index-eng.php >.

95Drinking Water Protection Regulation, BC Reg 87/2011, ss 2.

96Curran & Brandes, supra note 82.

APPEALVOLUME 19

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in the general Canadian population.97 is major discrepancy is in large part caused by

the fact that reser ves, falling within f ederal jurisdiction by virtue of sect ion 91(24) of the

Constitution Act, 1867,98 are not covered by any binding gu idelines.99 Without the threat

of legal penalties for poor water quality to incentivize federal spending, populations on

reserve have been lef t to deal with insucient infras tructure and personnel trai ning, and

inadequate drink ing water treatment and delivery.100

In recognition of this problem, the federa l government proposed in 2009 that provincial

legislation for operational standards be referentially incorporated into regulations

developed through consultation with First Nations.101 is proposal has culminated in

the new Safe Drinking Water for First Nations Act.102Critics like Constance MacIntosh

hold that a federal regime will face challenges regarding o-reserve source water

protection, as sources o-reser ve would fall into provincial jurisdict ion with its attendant

land-use plannin g and activity control legislation.103

An independent human rights approach could conceivably be eective in bridging the

gap between provincial and federal jurisdiction over safe drinking water standards by

giving a federal ly recognized human rig ht to water paramountcy over provincial land-use

legislation. is recog nition could permit First Nations communities in par ticular, along

with other Canadians, to hold both levels of state actors accountable for providing safe

drinking water. However, section 35 of the Constitution Act, 1982104 already imposes a

duciary obligation on the fe deral government to act in the best intere st of First Nations.105

It is not clear whether an extra layer of human rights protection would help to resolve

the discrepancy in water quality on reserve or would further obscure the legal process

surrounding Aboriginal Rights and Title claims. On the other hand, the traditional

property rights approach allows individual actors to reorganize and redistribute their

rights among themselve s using negotiation as was done in the Kla math Basin.106

Following Calabresi’s denition of inalienable rights as mentioned above,107 human

rights cannot be negotiated or altered, and exist on a large scale as entitlements held

by individuals which are only legally enforceable against the state.108 A human right to

water recognized in domestic law would impose an obligation, rather than an option,

upon the federal government to nd a solution to the problem of water quality;109 yet it

would not be eective in disputes between individua ls as in the Klamath Basin dispute

noted above. Where a dispute with the government arises, a human rights approach

could create dista nce between citizens and t he deemed solution by taking their part icular

interests out of the equation and rendering t he decision non-negotiable.

97Con stance MacIntosh “Public Health Protec tion and Drinking Water Qualit y on First Nation

Reserves” (2009) 18:1 Health L Rev 5 at 7.

98Constitution Act 1867 (UK), 30 & 31 Vict, c-3, s 91(24).

99 MacIntosh, supra note 97 at 7.

100Ibid at 5- 6.

101Ibid at 6.

102Safe Drinking Water for First Nat ions Act, SC 2013, c 21.

103 MacIntosh, supra note 97 at 8.

104Constitution Act 1982, being Schedule B to the Canada Ac t 1982 (UK), 1982, c-11, s 35.

105 See R v Van der Peet, [1996] 2 SCR 507 at paras 24-25, 137 DLR (4th) 289; Guerin v R, [1984] 2 SCR

335, 13 DLR (4th) 321.

106Curran & Brandes, supra note 82.

107See Part II, above and Cala bresi & Melamed, supra note 63 at 1092.

108What are Human Rights, supra n ote 11.

109Ibid.

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C. Physically Accessible

Under the requirement that water be accessible, Comment 15 species that water must

be physically acce ssible to everyone without discrimination or th reats of physical harm.110

e issue of physical accessibility was raised in Matsipane, where it was found at trial

that the Basarwa subjected themselves to physical hardship by choosing to live on land

where there was no readily ava ilable water.111 On appeal, the court rejected this a rgument

because the Basarwa had established a water source with the borehole in the area where

they lived, and the government had actively sealed it without any legal authority.112 e

government’s argument is undoubtedly cal lous in the face of human suerin g caused, not

by the Basarwa acting foolishly, but by the government’s allegedly intentional iniction

of suering to force the Ba sarwa to relocate. However, in a dierent context, this t ype of

argument could ca rry some weight.

At what point is it environmentally irresponsible for humans to live in a location which

has limited or no natural water source simply because we desire to live there? e

fact that California requires $400 million in taxes per year to subsidize a system of

aqueducts for agricultural and domestic needs should tell us that the ecosystem is not

capable of supporting such a la rge population.113 e state has recognized t his issue, and

although water rights transfers have increased to 1.2 million acre feet per year, the state

has intervened to ensure that over one third of those transfers have been done to meet

environmental, rather than human, needs.114 Needless to say, the cost of infrastructure

and transfer fac ilitation at this volume is well beyond what most water-poor states could

reasonably be expecte d to provide.

Environmental rights s cholar David Boyd arg ues that benets of a human rights regime

for water would include protecting water from pollution and other adverse impacts.115

He is echoed by others who hold that human rights to water resonate more soundly

than pure environmental claims, which are subject to regulatory whims, and human

rights and environmental protection overlap in eorts to preserve the environment for

the benet of present and future generat ions.116 However, regulatory regimes are eect ive

in promoting exibility in c onicts over entitlements, which is not possible under a non-

negotiable human rights regime, and often require precise denition of health risks and

pollution-causing activities.

As Linda Nowlan points out, “water ow, or environmental ow, plays a critical role in

ecosystem health; human uses for water compete with other species’ needs, often at the

expense of freshwater biodiversity.”117 e amount of water needed for basic personal

and domestic uses is relat ively low compared to agricultural or indust rial uses. However,

200 L/day for every person in a country of over a billion people—like India, which

recognizes a hum an right to water through the constitutiona l right to life118—adds up to

an enormous amount of water being diver ted from environmental ows to full huma n

needs in exist ing communities.119

110Comment 15, supra note 1 at para 12(c)(i) and (iii).

111Matsipane, supra note 29 atpa ra 10.

112Ibid.

113Christensen & Litner, supra note 10 at 232.

114Ibid at 231.

115 Boyd, supra note 76 at 2.

116 Huang, supra note 2 at 359.

117Linda Nowlan, “CPR for Canadian Rivers: Law to Conser ve, Protect and Restore Environmenta l

Flows in Canada” (2012) 23:3 J Envtl L & Practice 237 at 239.

118Constitution of India 1950, art 21; Vrinda Narain, “Water as a Fundament al Right: A Perspective

from India” (2010) 34:4 Vt L Rev 917.

119The enforcement of India’s right to water has been weak: se e Narain, ibid.

APPEALVOLUME 19

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143

If communities cannot aord to bring water to themselves, the government may force

groups to relocate, as was attempted illegally in Matsipane.120 at case highlights the

problem of competing human and environmental needs. While the government lacked

authority for shutting o access to the borehole, its plan to move humans out of the

CKGR was apparently motivated by wildlife conservation purposes.121 Relocations in

other states could violate enumerated rights such as that of housing in the Constitution

of the Republic of South Africa,122 or the freedom of movement under the Charter.123

is problem is exacerbated in a reas experiencing urban migrat ion, where water systems

struggle to keep up with demand, and in favela-like squatter settlements whose long-

term existence governments do not wi sh to encourage.124

Although a huma n right to water under Comment 15 would require water to be accessible

without discriminat ion, water sources are not t ypically distributed evenly by population

density in nature. Communities that cannot access enough clean water to full their

basic needs either must have water sources brought to them, or must be relocated closer

to water. Bulk water removals to commun ities that can aord to bring the water to them

would be protected not simply by international trade law but by the more inexible and

absolute guarantee of a huma n right. Yet major alterations of water ows pose a threat to

environmental health,125 and, c onsequently, human habit ation.

D. Aordable

e requirement that states provide access to a sucient supply of clean water is

inextricably connected with the issue of aordability. Comment 15 requires that water,

the necessary facilities and services, and all direct or indirect charges are aordable for

all.126 Whether privately or publicly provided, these services must be charged based on

the principle of equity, which demands that po orer households not be disproportionately

burdened with water expense s.127

To ensure aordability it is suggested that states adopt any necessary measures, which

may include a range of appropriate low-cost techniques and technologies, appropriate

pricing policies like fre e or low-cost water, and income supplements.128

It has been argued that a human right to water could prevent the privatization of

water resources. is is a matter of concern particularly in countries that are straining

to meet the heavy costs of implementing or improving water systems, as occurred

in Cochabamba, Bolivia.129 In 2000, less than sixty percent of the population of

Cochabamba had access to a water supply system, in part due to the large number of

squatter settlements in the city; consequently, private water vendors began acting as the

primary suppliers.130 To resolve this problem, the Bolivian government deemed water a

state-owned commodity that could be licenced to private companies for distribution.131

Accordingly, the government prohibited any independent water collect ion, including the

120Matsipane, supra note 29 at para 6.

121Ibid.

122Constitution o f the Republic of South Africa, 1996,supra no te 8 at s 26.

123Charter, supra note 13 ats 6.

124 Bluemel, supra note 7 at 988.

125 Nowlan, supra note 117 at 244.

126Comment 15, supra note 1 at para 12(c)(ii).

127Ibid at para 27.

128Ibid.

129 Bluemel, supra n ote 7 at 966-7.

130Ibid at 965.

131Ibid at 966.

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use of rainwater barrels.132 Licenced companies pursued a program of full cost recovery,

which allowed water suppliers to recover the full cost of supplying water to all users;

this measure immediately increased water costs to account for over twenty percent

of household income.133 Four months after the scheme began, Bolivians erupted into

violent protests, which ultimately forc ed the government to end privatized water delivery,

and return water to government control.134 While there may be controversy around the

notion that water, as a human right, “should be available to all regardless of ability to

pay,”135 the Bolivi an experience points to the existence of an i nformal ceiling on the price

of water at least in that commu nity.

e OECD published a report on global ta ri policies for water supply and sanitation in

2009, which gave a rare look into actu al costs and methods of payin g for water systems in

both OECD and non-OECD countries.136 It found that taris, or cha rges to household

users, are an important means of providing ongoing funding for water supply systems,

achieving a sustainable level of cost recovery, and reducing waste or undervaluation of

water as a resource.137 However, full cost recovery from taris alone, as occurred in

Cochabamba, “ is far from the norm.”138

To avoid imposing crippling taris, countries are shifting towards local commercial

nance, which is rei mbursed by user charges .139 Federal grants and loans are c ommon, and

nancing through pollution charges a nd municipal bonds has increased, with t he latter

occurring in I ndia and South Africa.140 Fina lly, the OECD found that countrie s initially

relied on dedicated water na ncing agencies to support infrastruc ture development, and

have lessened this reliance over time.141 Donors and international nancial institutions

usually aimed for three to ve percent of household income covering water taris when

planning for water inf rastructure investment projects.142

According to the 2012 GWI/OECD Global Water Tari Survey, the average combined

water and wastewater tari among 310 cities was US$1.98 per cubic meter (m3).143

Surprisingly, the lowest average residential taris were found in water-poor countries

with Saudi Arabia charging US$0.03/m3, and Cuba charging US$0.04/m3.144 e

highest costs were found in Australia at US$6.47/m3 and Denmark, where residents

pay up to US$9.21/m3.145 In 2007, Toronto residents paid US$1.64/m3, and users in

Gaberone, Botswana paid US$0.53/m3.146 e OECD report found that water charges

in developing countries, such a s Egypt, usually a ccount for a maximum of two percent of

household income, while OECD countries only sp end one percent of household income

on water.147 However, even in OECD countries such as Denmark, New Zealand, and

132Ibid.

133Ibid.

134Ibid at 966 .

135Ibid at 967.

136 OECD, supra not e 81.

137Ibid.

138Ibid at 80.

139Ibid at 55 .

140Ibid.

141Ibid.

142Ibid at 57.

143Global Water Intelligen ce, “Water Tari Survey”, (2012) 13:9 Global Water Intelligence 37, online: <

http://www.globalwaterintel.com>.

144Ibid.

145Ibid at 37-41.

146Ibid.

147 OECD, supra note 81 at 57.

APPEALVOLUME 19

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145

Turkey, the lowest decile of the population was found to spend as much as 3.0 – 10.3

percent of household income on water and wastewater bil ls.148

Aordability doe s not simply demand that states oer the lowest possible rates for water

use, but it requires a consideration of fair pricing to account for long term economic

and water needs. Environment Canada reported that the National Round Table on

Environment and Economy found “unmet water and wastewater infrastructure needs

[…] were $38-49 billion (CAD) in 1996, and capita l costs for the following 20 years wi ll

be in the order of $70-90 billion.”149 e clear way to deal w ith the problem, it states, is

to pay realistic rate s for municipal water ser vice that are sucient to cover the true cost,

based on actual quantity used. e Municipal Pricing Report found that the average

domestic water user paid CAD$1.26 for 1000 L in 2004, a rate which Environment

Canada deemed to be too low;150 although it is uncle ar whether any governmental policy

exists which su ggests what a fair rate would be.

Undervaluing water in Canada is caused by a perceived super abundance based on

statistics stating Canada contains twenty percent of the water in all the world’s lakes,

despite the fact that Canada only has 6.5 percent of the world’s total renewable water

supply.151 In countries like Canada where water is undervalued, a human right to water

could possibly inhibit or cause delay in adjusting water prices to reect true value by

giving individua ls a basis to complain that they should be e ntitled to free or low-cost (i.e.

undervalued) water.

e OECD reported that Canada’s current expenditure on water infrastructure

was US$7.88 billion with an average annual investment projected to be US$2.75

billion by 2015, and US$4.38 billion by 2025.152 According to the WHO, the costs

of implementing suitable water and sanitation systems in countries currently lacking

them would range from $135 – 327 billion.153 is cost wi ll be a major hurdle for water-

poor countries in which a human right to safe and su cient water would be a means of

holding irresponsible or unreact ive governments accountable for failing to provide acc ess

to sucient and safe water.154

As indicated by the a ordability factor in Comment 15, part of the purpose of rec ognizing

a human right to water is to ensure that states provide access to water even to those

who cannot aord it under the principle of full cost recovery.155 It is clear from the

underpricing of water in Canada that presently the government is not pursuing a full

cost recovery on water use or in frastructure, even absent a human r ight to water.

Following the lesson from Cochabamba, total privatization of water supplies in water-

poor countries, or those lack ing infrastruct ure, seems unlikely. Private companies would

have no motivation for investing bill ions into a system where users and governments will

not or cannot aord to pay even relatively low charges. A human rights approach may

be more valuable in developing countries where there is an actua l possibility of recovery

of the hundreds of billions required to build adequate water supply systems. Even so,

148Ibid at 88, gu re 3.3.

149Environment Canada, “ Withdrawal Uses: What is a Fair Price” (2006), online: Enviro nment Canada

gc.ca/>.

150Ibid.

151John B Sprague, “G reat Wet North? Canada’s Myth of Water Abundance” in B akker, supra note 10,

23 at 25.

152 OECD, supra note 81 at 42.

153Ibid at 52.

154Ibid at 52.

155 Bluemel, supra note 7 at 963.

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the OECD report shows that a variety of approaches to nancing are being taken in

most developing countries.156 is approach decreases the likelihood of a single private

or state entity taking control over water supply systems, and exploiting or refusing to

provide water to local populations, which removes an incentive for the strict human

rights approach.

As demonstrated in Lindiwe Mazibuko and Others v. City of Johannesburg and Others

(“Lindiwe”),157 protection from privatization does not necessarily ensure complete

aordability or acc ess to water resources. Loca l governments who control water resources

also have the power to tur n o the tap, even when an independent human right to water

is constitutionally recognized. While a human right to water could guide a country’s

approach to nancing and determining aordable taris to fund its water systems,

conscientious policymakers could pursue an aordable pricing regime absent a human

right to water.

E. The Independent Right Approach in South Africa’s Constitution

In the 2009 Lindi we case, the South A frican Constitutional C ourt was faced with its r st

opportunity to interpret sec tion 27(1)(b) of the Constitution of th e Republic of South Africa

(“Constitution”), which provides that everyone has the right to have access to sucient

water.158 e court concluded that the achievement of equality, a founding principle in

the constitution, cannot be accomplished “while water is abundantly available to the

wealthy, but not to the poor.”159

Johannesburg Water, the company that provides water services to city residents,

estimated that one-quarter to one-third of all water it purchased was distributed to the

impoverished Soweto district with only one percent of revenue coming back due to the

failure of many residents to pay consumption charges.160 Further, the company could

not account for about seventy-ve percent of water pumped to Soweto.161 In response to

these problems, the city and Joha nnesburg Water developed a three-tiered water services

policy under the Water Services Act (1994).162 Every household would receive 6000 L of

water per month (or 25 L per person per day) available for free following sec tion 11 of the

Water Services Act; consumers would pay for any water used in e xcess of that a mount.163

e tari followed a rising block structure so that heavier water users paid a higher

per kilolitre tari.164 Low-income households could register as indigent, which required

them to obtain pre-paid meters but made them eligible for a yearly allocation of 4000

L for emergency use, and wrote o all arrears owed to the city.165 Only pre-paid meters

were available in the Soweto neighb ourhood of Phiri while credit-meters were permitted

in other commu nities.166

During the implementation of the new policy, one of the Applicants refused to have a

pre-paid meter instal led, which resulted in her connection being cut o unti l she applied

156 OECD, supra not e 81.

157Lindiwe Mazibuko and Others v City of Johannesburg and Others, Case CCT 39/09, [2009] ZACC

28, online: Southern African Legal Information Institute

ZACC/200 9/28.html> [Lindiwe].

158Constitution of th e Republic of South Africa, 1996, supra note 8, s 27(1)(b).

159Lindiwe, supra n ote 15 7at para 2.

160Ibid at para 12.

161Ibid.

162Ibid at para 14.

163Ibid at para 80 -81.

164Ibid at para 80.

165Ibid at para 81.

166Ibid at para 14.

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for a meter seven months later.167 e Applicants argued that section 11 of the Wate r

Services Act conicted with section 27(1)(b) of the Constitution as the 25 L amount was

insucient and should have been set at 50 L.168 ey criticised the scheme for being

inexible and applying u nfairly based on economic status.169

As noted by the court, t his case dealt with the problem of requiring cou rts to determine

the extent of state’s positive obligations relating to the attainment of constitutional

rights. Following precedent,170 the court read section 27(1) together with section 27(2),

which requires the government to take reasonable measures within available resources

“to achieve the progressive rea lization of the right.”171

In response to the argument that the minimum amount of water per person should be

changed, the court made reference to ECOSOC’s 1990 General Comment 3, which

contained similar language to Comment 15.172 Both Comments declare that states have

a “minimum core obligation” to ensure the satisfaction of minimum essential levels of

each individual right.173 e court maintained “courts are ill-suited to adjudicate upon

issues where court orders cou ld have multiple social and ec onomic consequences for the

community,” and interpreted “minimum core” as something relevant to reasonableness,

not a self-standing right conferred on everyone.174 As a result, the minimum amount

under the city policy was not found to be insucient. e court upheld prior rulings

rejecting the argument that social and economic rights in South Africa’s constitution

“contain a minimum core which t he state is obliged to furnish.”175

e diculty a nd variety of means of supplying water i n part determines what const itutes

“sucient water,” yet the court lacks the expert ise for making these a ssessments “for both

institutional and democ ratic reasons.”176 However, the court held that positive obligations

imposed on the government by the Constitution could be enforced if cou rts required the

government to take progressive steps w here they had previously failed, or required re view

or removal of government measures if they did not meet the constitutional standard of

reasonableness.177 is standard would not be met if the policy made no provision for

those most desperately in need .178 e court found that progressive steps were exemplie d

in the city’s revision of its indigent policy to provide more water for poor hous eholds.179

e 6000 L allowance for all households was found reasonable because the block tari

structure ensu red that wealthier customers who use more water would be cha rged more,

and because of the diculty of distinguishing which households would be deserving

of free water.180 Further, the court held that the free allowance would provide average

households of 3.2 people with 60 L per person per day, which was far more than the

167Ibid at paras 15-16.

168Ibid at para 44 .

169Ibid at para 44.

170On “dening the s cope of positive rights…and the correspo nding obligations on the State”, ibid

at para 49, quoting Treatment Action Campaign No.2 [ 2002] ZACC 15 at para 39.

171Lindiwe, su pra not e 157at para 50.

172Ibid at par a 40.

173Ibid at para 52.

174Ibid at paras 54-5.

175Ibid at para 53 citing G overnment of South Africa and Others v. Grootboo m and Others [2000] ZACC

19 at para 34, and Treatment Action Campaign at para 34 supra note 170.

176Lindiwe, sup ra note 157 at para 62.

177Ibid at par a 67.

178Ibid at para 67.

179Ibid at para 95.

180Ibid at 84.

148

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APPEALVOLUME 19

prescribed minimum of 25 L.181 Increasing minimum amounts to benet poor areas

with a larger number of user s would be unreasonably burdensome to the city, and overly

generous to households with fewer user s given that the court had alrea dy decided against

allotting on a per pers on basis.182

e city’s requirement that pre-paid or credit meters be mandatorily installed based on

geographic area was justied as a power “reasonably incidental to providing services to

citizens in a sustainable manner that permits cost recovery.”183 is policy reected the

reality that re sidents in Soweto had a history of faili ng to pay their water bills.184 e court

held that temporarily suspending service to customers with prepaid meters that have not

purchased additiona l credit after their monthly basic supply or prior credit has been u sed

up did not amount to unconstitutional, per manent discontinuation of water supply.185

is judgment provides a signic ant amount of guidance as to the li mitations and powers

of an independent human right to water w ithin South Africa, as we ll as broader guidance

to any positive rights to government-provided servic es.

First, a state recognizing a human right to water may not be required to immediately

provide every person with sucient water; rather, it must take reasonable steps to

progressively implement the right. is approach diminishes the added protection of

having an absolute human right to water as this right must be realized like any other

right: with exibil ity and bala ncing of surrounding factors.

Second, minimum sta ndards are to be determined by t he state though they are revie wable

by the courts. Counter to t he notion of human rights bei ng absolute and indivisible, the

court in Lindiwe held that “xing a quantied content might, in a rigid and counter-

productive manner, prevent an analy sis of context.”186 Again, the court wa s guided by the

concept of reasonableness, which applie s in the more exible property and liability ri ghts

regimes as dened by C alabresi.187

ird, the court’s emphasis on progressive realization and statement that it would be

overly burdensome to determine the monthly amount of free water on a per person

basis188 indicates that this human right can be signicantly limited by administrative

realities. e court seems willing to limit the force of human rights protection due to

its self-professed discomfor t in imposing costly positive obligations on the government.

Finally, the court found that temporary cut-o due to failure or inability to pay after

using the allotted minimum free allowance of water did not amount to a suspension of

human rights.189 is nding is controversial on its face as a human right is intended

to be absolute and protected against any alteration; yet it is clear that water shut-o

changes one’s living conditions and pre vents one’s daily water needs from bei ng fullled.

However, the court was understa ndably reluctant to hold the government to any positive

obligation to immediately provide water as cost recovery through taris is necessary

in order to provide water at all. e ability to suspend water rights, and the reasonable

181Ibid at para 88.

182Ibid at paras 88- 89.

183Ibid a t pa ra 111.

184Ibid at para 139.

185Ibid at para 124.

186Ibid at para 60.

187Calabresi & Melamed, supra note 63.

188Lindiwe, supra note 157 at paras 88 -89.

189Ibid at para 124.

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149

motivation to do so, suggests that a human rights framework is not appropriate where

water rights are concerned .

CONCLUSION

e human right to water was recognized in the 2002 CESCR General Comment 15

as well as in a 2010 UN General Assembly Declaration.190 While a human right to

water may appear attractive as a means of preventing water-borne disease and ensuring

adequate supply of water for basic domestic needs, many questions are raised when one

considers how a declaration of the rig ht translates into an actual lega l entitlement.

Courts in Bots wana have attempted to derive a human right to sink or deep en a borehole

and abstract water for domestic purposes from the primary right of an individual to

own or occupy land.191 In South A frica, the government has entrenched an independent

human right to sucient supply of water with in its Constitution.192 However, the Lindiwe

case from South Africa shows that available resources limit the human right to water.

Further, a human right to water does not permit citizens to immediately demand

provision of water services, and does not guard against water shut-o for non-payment

of a water tari.193 e Matsipane case from Botswana demonstrates the diculty in

dening a human right to water as a means of achieving other rights. e human right

to water in that case suered from the questionable justiciability of positive rights. e

case also hinted at the tension between conservation needs and human needs as well

as the environmental costs of delivery of water to individuals who live in areas lacking

sucient water supplies.

e human rights framework does little to add protection to water rights beyond what

could be oered by a responsibly craf ted property rights-based re gulatory framework th at

manages access and usage of water through permitting systems. e ability to grant or

remove property rights as nee ded is balanced, particu larly in the common law, by a legal

tradition that ack nowledges the validity of those rights a nd oers them a high degree of

protection. As the negotiated resolution of the Klamath Basin dispute demonstrates,194

exibility and responsiveness to environmental conditions are necessary elements for

successfu lly addressing scarcity, and are inherent to property r ights-based regimes.

Yet exibility and responsiveness are precisely what indivisible, inalienable and non-

discriminatory human rights regimes are created to avoid. Inalienable rights, as noted

by Calabresi,195 cannot be negotiated, altered, or interfered with. Water, however, is a

naturally oc curring entity that exists wit h or without humans, and that we cannot exist

without: it is already alienated from us. Ironically perhaps, treating water as property

acknowledges it as a substance outside of human control, as something to which we

must be granted a right and which should not be conned to being considered rst and

foremost in terms of human consu mption.

190Comment 15, supra note 1; The Human Right to Water and Sanitation, supra note 3.

191Matsipane, supra no te 29.

192Constitution of the Rep ublic of South Africa, 1996,supra note 8.

193Lindiwe, supra n ot e 15 7.

194Curran & Brandes, supra note 82.

195Calabresi & Melamed, supra no te 63.