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 Committ ee on Economic, Social a nd Cultural R ights
(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 C omment 15 was followed in 2010 by a United Nations
(UN) Genera l Assembly Declar ation recognizing “the ri ght to safe and clean d rinking
water and sanitation as a hum an right that is e ssential for the fu ll 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 su icide by voting agai nst it.4
United States deputy representative to the E conomic and Socia l Council, John Sammis,
explained that h is country abst ained from voting bec ause “the legal implicat ions of
a declared right to water have not yet bee n considered.”5 More than three years l ater,
Sammis’ statement holds true .
ere have been two main approac hes taken by nations in cr afting a hum an 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 recognize s an independent positive human ri ght to water.7 is
approach has been tak en in South Africa where the right to have ac cess to sucient 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 Signicance of a
Codied 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, 199 6, No 108 of 1996, ss 27(1)(b) and (2).
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On the surface, add ing water to the roster of internationa lly recogniz ed human rights,
as urged by the U N High Commissioner for Huma n Rights (U NHCHR), seems
unobjectionable: with statis tics from the World Health Organi zation (WHO) that over
one billion people lack access to sa fe drink ing water and 2.5 billion lack the a dequate
sanitation necessa ry to reduce exposu re to water related disea ses, a human rig hts
approach to water entitlements has an im mediate appeal as a means of al leviating human
suering.9 However, case law from Botswana and Sout h Africa ha s demonstrated that
recognizing t he existence of a human r ight to water does not account for the mea ns
of implementing or remedying violations of the rig ht. ere is little indicat ion that
establishing t his right has led to substantive cha nges in government obligations or access
to water in those countries in a m anner otherwi se unachievable under a more ex ible
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, fa ir trials, or equa lity, water has not been success fully shaped
into a human right becau se it is not a human creation. It is an inva luable natural entit y
necessar y to sustain a ll living creatu res and systems on t he planet. Humans may bet ter
organize our ow n use of water through licensing or permitt ing systems based in propert y
rights regimes a nd limit that use by ack nowledging ecos ystem needs. Prioritizat ion of
competing uses a nd regular interference with water rights w ill be essential because water
is a scarce natu ral resource; a s such, it is inappropriate to deem water a human rig ht,
which by denition would place it among “rights i nherent to all human beings…[which
are] interrelated , indivisible…and inalie nable.”11
While there is a n impetus from internationa l organiz ations to create a human right to
water, this paper will not focu s on the international lega l recognition of such a right.
Instead, this p aper explores the ways in which i ndividual st ates are shaping th is right in
domestic law. It will demonstrate that a huma n rights fra mework is not an appropriate
vehicle for managin g natural resou rces or expandin g water supply to those in need by
examini ng both the derivative and independent human right approaches. e d iscussion
of each approach will conta in an ana lysis of the legal found ation of that human right,
a denition of the substance of t he right, and a case s tudy where the right has be en
recognized in t hat manner. To provide a broad overview of the topic, this paper wi ll
refer to statistics on globa l water usage and the cost of providing water as we ll as aspects
of water rights regimes in c ountries including Bot swana, South A frica, India , Bolivia,
Canada, a nd the United States.
9 Oce 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/>.
10 Common 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.
11 Oce 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 subordi nate human right to water implied w ithin 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 understa nding that human s require water for nearly al l of our activities, from
cleaning and c ooking to dril ling for oil and manufa cturing ca rs.12 Following th is logic,
the human right to life a s entrenched in section 7 of the C anadian 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 der ived from a wide range of recog nized prima ry
rights. Comment 15 states that “[t]he human right to water […] is a prerequisite for the
realization of other hum an rights.”14 is includes the rig ht to life, liberty a nd security
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 eac h of the
ICESCR rights, includi ng a sucient amount of clean water, safely accessible to all, at a
low cost with proper monitoring and a plan of act ion.17 It would obligate States to take
positive measures to as sist individual s 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 i mplicates safe dri nking
water, protection of bodies of water from contaminat ion, and water to clean up waste.19
Although statements f rom the CESCR are not lega lly binding, countr ies including
South Africa a nd Botswana have uti lized the la nguage conta ined 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 ac count for sanitation and hygiene.21
e amount of water required for ensurin g good health, if th at is to include hygiene,
is far more than t hat needed to satisf y the right to food. ese a re both far less th an
industrial development,22 which is unclear from the wording of ICESCR .23 Given the
dierent quantities of water requi red for the broad range of activ ities contemplated by
12 Dan 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.
13 Canadian 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].
14 Comment 15, supra note 1 at para 1.
15 Ibid.
16 International 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].
17 Comment 15, supra note 1 at para 37.
18 Ibid at para 25.
19 General 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.
20 See Part I-A and Part II- E below for more on this topic.
21 Huang, supra note 2 at 357.
22 ICESCR, supra no te 16.
23 “Development” in this paper sign ies 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 determ ining which politica l, economic or socio-cultu ral
rights should be provided for rst. Yet an underly ing human right to water wou ld be
incompatible with hierarchy bec ause a human right is i ntended to be indivisible and
non-discrim inatory.24
rights like adequate fo od or health, allotments wou ld have to be tailored to dierent
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 cli mate and population, among numerous other f actors.
To avoid human rig hts violations and to provide an adequate a mount of water for each
activity would requi re historical k nowledge and predictions of water ava ilability eac h
year, information that even a wea lthy and developed countr y like Cana da lacks.25 A ny
prediction is subject to environmental c onditions beyond human control or knowled ge,
and in any given year t he available water may be so litt le as to render meaning less a
specic entitlement to a nite resource t hat belongs to the entire population of a country.
When the UN Genera l Assembly issued its 2 010 declaration that the right to safe a nd
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, Austra lia, and Britai n were among the countries
that abstained f rom adopting the non-binding resolution.27 In eec t, 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 sanitat ion in a way that is
not reective 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 t he declaration ty pies the weak ness in the derivative approac h
to recognizing a hum an right to water. e derivative approach is burdened by t he
questionable existence of positive oblig ations on governments to satisfy primar y rights. It
also demands t hat governments prioritize prima ry human ri ghts by determining w hich
rights require water for their f ullment. es e issues are illus trated in the Bots wana
case of Matsipane Mosetlhanyane and Gokenyatsiwe Matsipane v. Attorney General
(“Matsipane”),29 where a huma n right to water was recogn ized 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 Botswan a Court of Appeal qu ashed a prior ruling t hat denied the Basarwa
(also known as K alahar i Bushmen) access to water on thei r ancestra l lands located in
24 What are Human Rights, supra no te 11.
25 Shrubs ole & Draper, supra note 12 at 47.
26 The Human Right to Water and Sanitation, supra note 3.
27 Mchangama, supra note 4.
28 John 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
29 Matsipane 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 Ka lahar i Game Reserve (CKGR).30 In 1961, the CKGR was established
to conserve wildl ife and provide residence for the Ba sarwa, who formed pe rmanent
hunter-gatherer settlements there.31 In 1986, the De Beers di amond company agreed to
allow Basar wa residents to use a borehole that the company had sunk at Mothomelo for
gathering water.32 e government mainta ined the engine of the borehole pump from
1986 – 2002.33
In 2002, the government evic ted the Basar wa from the CKGR after is suing a policy
statement that the reser ve existed solely for the purpo se of wildlife cons ervation.34 e
new policy deemed that hum an settlements were incompat ible with that purpose, a nd
bringing water inf rastructu re into the area would seriously compromise fau na conservation
eorts.35 During relocation of the Ba sarwa, t he pump engine and water ta nk built into
the borehole were dismantled, a nd the borehole was sealed.36 e cour t speculated th at
these change s were likely done to induce the Basarwa to move, a lthough many eventually
returned to their set tlements.37 e court ca lled the ordeal, which per sisted for several
years, a “ha rrowing story of huma n suering and des pair from the shorta ge 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 Basarw a 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 ne w boreholes at their own
expense to take a nd use water for domestic purpose s by virtue of their oc cupation or
ownership of the land.40 In accorda nce with section 6, t he Basarwa were not se eking
a right to abstract at wi ll unlimited qu antities of water from an uns pecied number
of boreholes, but rather to use an exi sting or new hole.41 As such, they re asoned 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 t hat the government violated sect ion 7(1) of the Constitution of Botswana
(196 6 )44 by subjecting them to “ inhuman or degrading punishment or tre atment.”45
In response, the government arg ued that the well wa s not a borehole as dened under
the Wat er Act but that it wa s a “prospecting hole” drilled for mi neral 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 intendi ng to sink or deepen
wells or boreholes to take water for domest ic purposes could only do so with a water right
30 Ibid.
31 Ibid at para 4.
32 Ibid at paras 4-5.
33 Ibid at para 5.
34 Ibid at para 6.
35 Ibid.
36 Ibid at para 7.
37 Ibid at paras 6-7.
38 Ibid at para 4.
39 Ibid at para 8.
40 Ibid at para 13.
41 Ibid at para 14.
42 The Water Act, supra note 6, ss 6 and 9.
43 Matsipane, supra note 29 at paras 14-16.
44 Constitution of Botswana (196 6), BW A-010 , 196 6, s 7 (1).
45 Matsipane, supra note 29 at para 19.
46 Ibid 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 applica nts in Matsipane, to support their nd ing that
the Basar wa were wrongly deprived of possession of their settlements. e cour t further
held that the government had acted u nlawfu lly and unconstitutiona lly by denying the
Basarw a permits to enter the land.50 e borehole had ceased b eing a prospecting hole
after being converte d for domestic purposes for the benet of the c ommunity, 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 dri ll beneath
it to nd water he and his fami ly will need if the y are to live there, it is
unsurprising t hat Parliament should have decided t hat he should have an
‘inherent’ right to do just that.52
eir “inherent” right to acce ss water was deemed absolute and u nqualied, and t he
court held that the Ba sarwa did not need aut horization to take water.53 is la nguage
suggests th at the court gra nted a human right of acce ss to water underlying the rig ht
to occupy land rather th an a property rig ht to use or own water.54 e language in the
decision that permits acc ess to water for domestic purpose s is consistent with a huma n
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 ack nowledged that Comment 15 guided their judgment,
and quoted the General As sembly recognition of the right to sa fe and clean drin king
water as a funda mental human rig ht essential for the fu ll enjoyment of life and all
human r ights.56
is ruling s hed light on how courts may addre ss the issue of acce ss to water when
applicants live in area s where water is natura lly scarce. In re ference to the section 7(1)
claim, the cour t agreed that the B asarwa were subjec ted to inhuman or degra ding
treatment in being denied perm ission to use or sink a borehole, at their own expense, for
domestic purposes.57 is nding overruled the tria l judge’s holding that the Basar wa
had brought whatever hards hips they suered upon themselves by “free ly choosing to go
and live where there was no water.”58
One problem with this judgment is the incongr uity betwe en the acknowledgment of
a human right underlyin g the primary r ight to occupy land and t he apparent lack of a
positive governmental obligation to provide es sential serv ices. Although it wa s 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 expens e, and in fact conceded to t he respondent’s argument that
47 Ibid at para 13.
48 Ibid.
49 Sesana and Others v Attorney General (2006) (2) BLR 633 (HC); (2006) AHRLR 183 (BwHC 2006).
50 Matsipane, supra note 29 at para 12 .
51 Ibid at paras 17-18.
52 Ibid at para 16.
53 Ibid at para 19.
54 Bonol 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.
55 Matsipane, supra note 29 at para 16.
56 Ibid 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 res tore the provision of basic and essentia l
services to residents of t he CKGR, following Sesana.59 erefore, the government would
be barred from in icting suerin g by depriving citizens of sel f-nanced acces s to water,
but it need not take initiative to prevent suer ing from lack of water. It appears the
court has recog nized a negative human ri ght to water where one might expect a positive
obligation on the government to provide water to protect citizen s from inhumane
conditions .
Legal schola r Bonolo Dinokopila suggests t hat the life threate ning eects of the st ate’s
decision to seal the borehole without authority g ives a moral basis for recog nizing 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 su rvival of hi s family. is revea ls
a reliance on the lang uage of property r ights even where moral considerat ions gure
prominently. While this avoids a revolutionar y expansion of human r ights, it oers a
pragmatic solution to a physical problem withi n the bounds of existing law: court s may
recognize th at a property rig ht to land contains a proper ty right to water.
Human rights ex ist as a categor y of rights intended to be inal ienable, necessar y, and
of such basic importance t hat they are unch anging,61 yet a court’s binding judgments
are subject to appeal. A s the court in Matsipane implied by declining to re open the
Sesana ruling aga inst a government obligation to provide ess ential servic es, there is a
democratic decit in allowi ng judges to read-in an underlying right and t hen dictate that
the government must implement it. is criticism is espe cially true when t he provision
of services require s going beyond court ex pertise to policy ma king 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 rig ht to water could be initiated in t he legislative branch of
government and applied broadly to a range of water-base d activities. Benet s of
explicitly acknowledg ing a human right to water, according to Peter Gleick of the Pacic
Institute, include encourag ing and pressurin g governments to meet basic water needs
of their populations, and identif ying min imum water requirements and a llocations for
parties with in a particu lar watershed.62 is a pproach, which would marr y the natural
environment directly to huma n need with no possibility of d ivorce, faces inherent
conceptual and remed ial chal lenges. A description of various t ypes of rights a nd their
attendant remedies by law and e conomics scholar Guido Ca labresi provides a usefu l
framework for evaluat ing these challenges.63
Calabresi notes that r ights are protected either by propert y, liability, or inalienability
rules.64 Interference w ith a right would be appropriate in the rea lm of property rights ,
which “involve a collective de cision as to who is to be given an initi al entitlement” and
then permit removal of the entitlement throu gh a voluntary transaction.65 A n inalienable
59 Ibid at para 18.
60 Dinokopila, supra note 54 at 290-292.
61 What Are Human Rights, supra no te 11.
62 Peter H G leick, “The Human Right to Water ” (2007) 41 Economía Exterior 1, online: Pacic
Institute .pdf>.
63 Gui 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.
64 Ibid.
65 Ibid 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. Com ment 15, however, can be interpreted
as permitting i nterference with an indiv idual’s right to water as it notes that st ates or
third part ies must consult with and g ive notice of actions to aecte d individuals prior
to the interference with their r ights.67 CESCR may have i ncluded this statement in
Comment 15 because the state must be able to regula rly interfere with rights to resources
that exist independent ly as natural, t angible entities both to deliver a nd manage them.
is is partic ularly true where res ources are sca rce due to environmental factors be yond
human control. However, this indicate s that water rights do not t comfort ably within
a human rights regi me.
If rights are dependent on the ru les and remedies th at accompany them, as Ca labresi
suggests, t hen a right without remedy is no right at al l.68 e remedies identied in
Comment 15 to address violations of the human right to water i nclude “adequate
reparation, including rest itution, compensation, satisfact ion or guarantees of non-
repetition” by the national or internationa l judiciary.69 It follows that a human ri ght to
water must be adequately dened 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 dec iencies in water availability and criteria for determi ning what is
meant by deciency.
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 l imited by
resource scarcit y, the need to maintain natur al ecosystem s, and economic and politica l
factors. As such, it may only be applied to sat isfy basic needs for drinki ng, cooking, and
“fundamental domestic uses.”71
Despite the challenge s noted above, Comment 15 provides a framework for countries
seeking to implement an independent positive huma n right to water throug h its
recognition of four key factors. e se are dened by the statement that e veryone is entitled
to (1) sucient, (2) safe and acc eptable, (3) physically ac cessible, and (4) aordable water
for personal and domestic us es.72 is section explores the sub stance of the four fac tors
to shed light on issues with t he denition and implementation of thi s right.
A. Sucient Supply
Water supply for each person must be sucient and continuous for personal a nd domestic
uses, accordin g to Comment 15.73 ese uses include drinking water, human wa ste
disposal, clothes w ashing, food prepa ration, and personal a nd household cleanliness .
Comment 15 acknowledges “some individuals and g roups may also require addit ional
water due to health, climate, a nd work conditions.”74
66 Ibid.
67 Comment 15, supra note 1 at para 56.
68 Calabresi & Melamed, sup ra note 63.
69 Ibid at para 55.
70 Gleick, supra note 62 at 4.
71 Ibid at 4.
72 Comment 15, supra note 1 at para 2.
73 Ibid at para 12(a).
74 Ibid.
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e estimated min imum amount of water required for subsistenc e according to
ECOSOC is 7.5 L/day, which covers only food preparation and hydr ation, or 50 L/day,
which accounts for san itation and hygiene.75 e WHO gives a hi gher estimate of at
least 50 – 100 L/day for each person.76 According to Sh rubsole and Draper, in 2006 each
Canadian u sed an incredible 440 0 L/day “to support our lifestyle,” with about 343 L /
day allotted speci cally to persona l domestic use.77 In France and Sweden, indiv iduals
use only 150 L/day and 200 L/day respectively.78 is extreme variat ion in the quantities
that individua ls in dierent countries would consider necessa ry for fullling basic need s
explains the lac k of specicity in this category wit hin Comment 15.
If water is recogniz ed as an independent human r ight 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 popu lation of about 1.8 million,79 governments would have to
nd alternative mean s of supplying the guara nteed quantities of water to their c itizens.
ey may turn to bulk e xports from countrie s like Canada w here there is a perceived
abundance of water, and an average i nternal annua l renewable water resource of 2850
km3 for a population of 34 mi llion.80
Whether a countr y is considering bulk e xports or determini ng the minimum a mount
of water necessar y to satisfy ba sic human needs, a meterin g or usage monitoring system
would likely have to be implemented to determine su cient supply. According to a 2009
report by the Organis ation for Economic Cooperation and Development (OECD),
governmental expenditu res on water infrast ructure in OECD cou ntries averaged
$11.9bil lion during 2006.81 While it would be a valua ble 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 B asin dispute in northern C alifornia82 demonst rates scarcity i ssues more
commonly faced in developed n ations, and illustr ates the ecac y of property rights
regimes for protecting ac cess to water. Although t he parties in t he 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
aected both t he quality and qua ntity of water in the Kl amath River.84 ese ch anges
75 Huang, supra note 2 at 357.
76 David R Boyd, “The Right to Water: A B rieng 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.
77 Shrubs ole & Draper, supra note 12 at 39.
78 Ibid.
79 K 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
80 AquaStat, “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>.
82 De 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 .
83 Ibid.
84 Ibid at 7.
140
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signicantly i mpacted the ability of Ind igenous communities to exercis e their senior
tribal right to sh g iven a major decline in salmon popul ation.85 Junior agric ultura l
licence holders were unable to obtain su cient water for irrigation due to the decrea sed
supply of water.86 After years of shorta ge and litigation, Indigenou s and agricultu ral
rights holders negotiated the K lamath Ba sin Restoration Agre ement in 2010.87 e
agreement maintai ned the property right s-based system of prior al location, 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 t hey were legally entitle d to
greater supply.88 Finally, the agreement provided a d ispute resolution mechanism to
resolve any future con icts.89
e Klamath B asin dispute showed that “at the appropriate sca le, people prefer to
cooperate to solve conicts over entitlements to a nd the use of resources rat her than
resort to legal ru les and litigation.”90 While priorit y rules attached to proper ty rights-
based licencing reg imes may fail to resolve disputes bet ween competing interests through
litigation, they provide a basis for neg otiation. Successfu l negotiation relies upon
exibility and wel l-dened interests, and can be a valuable mea ns of addressing scarcity,
particula rly in cases where govern ments cannot adequately dic tate 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 us e 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 D rinking Water Protection Act in BC ,93 and federally t hrough
non-binding guidelines set by Hea lth Canad a.94 Provincial standard s for potable water
recognize fecal coliform, e. coli, and tota l colifor m,95 but do not address other potential
health risks wh ich may be present due to environmental fac tors in dierent locations
aected by loca l industry or cli mate. Furthermore, insu cient funding, va st distance s
between sources , and poor central monitoring have resulted in frag mented management
of thousands of water supply system s in BC.96 e consequences of a lack of federa lly
binding guideline s are felt most distinct ly by First Nations communities in C anada; a
Health Canad a 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
85 Ibid at 8.
86 Ibid at 7.
87 Ibid at 8.
88 Ibid.
89 Ibid.
90 Ibid.
91 Comment 15, supra note 1 at para 12(b).
92 Ibid.
93 Drinking Water Protection Act, SBC 2001, c-9.
94 Health Cana da “Guidelines for Canadian Drink ing Water Quality – Summary Table” (2012), online:
Health Canada -sum_guide-res_
recom/index-eng.php >.
95 Drinking Water Protection Regulation, BC Reg 87/2011, ss 2.
96 Curran & Brandes, supra note 82.
APPEAL VOLUME 19
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in the general Ca nadian population.97 is major di screpancy is in la rge part cau sed 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 po or water quality to incentiv ize federal spend ing, populations on
reserve have been lef t to deal with insucient 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 st andards be referentia lly incorporated into reg ulations
developed through consu ltation with First Nations.101 is proposa l has culm inated in
the new Safe Drinking Water for First Nations Act.102 Critics like Const ance MacIntosh
hold that a federal regime w ill face cha llenges rega rding o-reserve source w ater
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 rig hts approach could conceivably be eec tive in bridging the
gap between provincia l and federal juri sdiction over safe dri nking water sta ndards 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 Canad ians, to hold both levels of state ac tors accountable for providing sa fe
drinking w ater. 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 ext ra layer of human rights protec tion would help to resolve
the discrepanc y in water quality on reser ve or would furt her obscure the legal proc ess
surrounding Aborig inal Ri ghts and Title claim s. On the other hand, the tr aditional
property rights approach a llows individua l actors to reorganiz e and redistribute thei r
rights among themselve s using negotiation as was done in the Kla math Basin.106
Following Calabresi ’s denition of inalienable rights a s mentioned above,107 human
rights cannot be negot iated or altered, and exi st on a large scale a s entitlements held
by individuals whic h are only legally en forceable again st the state.108 A human rig ht to
water recognized i n domestic law would impose an oblig ation, rather than a n option,
upon the federal government to nd a solution to the problem of water qualit y;109 yet it
would not be eective in disputes b etween individua ls as in the Klamath Basi n dispute
noted above. Where a dispute with the govern ment arises, a human r ights 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.
97 Con stance MacIntosh “Public Health Protec tion and Drinking Water Qualit y on First Nation
Reserves” (2009) 18:1 Health L Rev 5 at 7.
98 Constitution Act 1867 (UK), 30 & 31 Vict, c-3, s 91(24).
99 MacIntosh, supra note 97 at 7.
100 Ibid at 5- 6.
101 Ibid at 6.
102 Safe Drinking Water for First Nat ions Act, SC 2013, c 21.
103 MacIntosh, supra note 97 at 8.
104 Constitution 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
106 Curran & Brandes, supra note 82.
107 See Part II, above and Cala bresi & Melamed, supra note 63 at 1092.
108 What are Human Rights, supra n ote 11.
109 Ibid.
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C. Physically Accessible
Under the requirement that water be acce ssible, Comment 15 species that water must
be physically acce ssible to everyone without discrimination or th reats of physical harm.110
e issue of physical acce ssibility was ra ised in Matsipane, where it was found at trial
that the Basa rwa subjected themse lves to physical hard ship 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 Bas arwa had e stablished a water source w ith the borehole in the area where
they lived, and the govern ment had actively sealed it wit hout any legal authority.112 e
government’s argument is undoubtedly cal lous in the face of human suerin g caused, not
by the Basar wa acting foolish ly, but by the government’s allegedly intentional iniction
of suering to force the Ba sarwa to relocate. However, in a dierent context, this t ype of
argument could ca rry some weight.
At what point is it environmentally ir responsible for humans to live in a locat ion which
has limited or no natur al water source simply becau se we desire to live there? e
fact that Ca lifornia requires $ 400 million in ta xes per year to subsid ize a system of
aqueducts for agricultu ral and domestic need s should tell us that t he ecosystem is not
capable of supporting such a la rge population.113 e state has recognized t his issue, and
although water right s transfers have incre ased to 1.2 million acre feet per ye ar, the state
has intervened to ensure t hat over one third of those tra nsfers have been done to meet
environmental, rather tha n human, needs.114 Need less to say, the cost of infrast ructure
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 benets of a human rights regime
for water would include protecting water from pollution a nd other adverse impacts.115
He is echoed by others who hold that human r ights to water resonate more soundly
than pure environmenta l claims, wh ich are subject to regulator y whims, and hum an
rights and environmenta l protection overlap in eorts to preser ve the environment for
the benet of present and future generat ions.116 However, regulatory regimes are eect ive
in promoting exibility in c onicts over entitlements, which is not possible under a non-
negotiable human rights re gime, and often require prec ise denition of health ri sks and
pollution-causing activities.
As Linda Nowlan point s out, “water ow, or environmental ow, plays a critical role in
ecosystem hea lth; human uses for water compete w ith other species’ needs, of ten at the
expense of freshwater biodiversit y.”117 e amount of water needed for ba sic personal
and domestic uses is relat ively low compared to agricultural or indust rial uses. However,
200 L/day for every person in a cou ntry of over a billion people—li ke 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 full huma n
needs in exist ing communities.119
110 Comment 15, supra note 1 at para 12(c)(i) and (iii).
111 Matsipane, supra note 29 at pa ra 10.
112 Ibid.
113 Christensen & Litner, supra note 10 at 232.
114 Ibid at 231.
115 Boyd, supra note 76 at 2.
116 Hua ng, supra note 2 at 359.
117 Linda 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.
118 Constitution of India 1950, art 21; Vrinda Narain, “Water as a Fundament al Right: A Perspective
from India” (2010) 34:4 Vt L Rev 917.
119 The enforcement of India’s right to water has been weak: se e Narain, ibid.
APPEAL VOLUME 19
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If communities ca nnot aord to bring water to themselve s, the government may force
groups to relocate, as was at tempted illegal ly in Matsipane.120 at case hig hlights the
problem of competing human and environ mental needs. Wh ile the government lacked
authority for shutting o acce ss to the borehole, its plan to move humans out of the
CKGR was apparently motivated by wild life conservat ion purposes.121 Relocations i n
other states could violate enumerate d rights such as th at 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 w ith demand, and in favel a-like squatter sett lements 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. Com munities that ca nnot access enough cle an water to ful l their
basic needs either must have water sourc es brought to them, or must be relocated closer
to water. Bulk water removals to commun ities that can aord to bring the water to them
would be protected not simply by international tra de law but by the more inexible 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. Aordable
e requirement that states provide acc ess to a sucient supply of clean water is
inextricably connec ted with the issue of a ordability. Comment 15 requires that water,
the necessar y facilities a nd services, a nd all direct or ind irect charge s are aordable for
all.126 Whether privately or publicly provided, t hese service s must be charged ba sed on
the principle of equity, which demands that po orer households not be disproportionately
burdened with water expense s.127
To ensure aordability it is suggeste d that states adopt any nece ssary mea sures, which
may include a range of appropriate low-cost techn iques and technologies, appropriate
pricing policies like fre e or low-cost water, and income supplements.128
It has been argued t hat a human right to water cou ld prevent the privatization of
water resources. is i s a matter of concern part icularly in countr ies that are stra ining
to meet the heavy cost s of implementing or improving water systems , as occurred
in Cochabamba , Bolivia.129 In 2000, less t han sixt y percent of the population of
Cochabamba had a ccess to a water supply system, in pa rt due to the large number of
squatter settlements in t he city; consequently, private water vendors began ac ting as the
primar y suppliers.130 To resolve this problem, the Bolivian g overnment deemed water a
state-owned commodit y that could be licenc ed to private companies for dist ribution.131
Accordingly, the government prohibited any independent water collect ion, including the
120 Matsipane, supra note 29 at para 6.
121 Ibid.
122 Constitution o f the Republic of South Africa, 1996, supra no te 8 at s 26.
123 Cha rter, supra note 13 at s 6.
124 Bluemel, supra note 7 at 988.
125 Nowlan, supra note 117 at 244.
126 Comment 15, supra note 1 at para 12(c)(ii).
127 Ibid at para 27.
128 Ibid.
129 Bluemel, supra n ote 7 at 966-7.
130 Ibid at 965.
131 Ibid at 966.
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use of rainwater barre ls.132 Licenced companies pursue d a program of full c ost recovery,
which allowed water suppliers to recover t he full cost of supplyin g water to all users;
this measure i mmediately increas ed water costs to account for over t wenty percent
of household income .133 Four months after the scheme bega n, Bolivians erupted i nto
violent protests, which ultimately forc ed the government to end privatized water delivery,
and return water to government control.134 Wh ile there may be controversy arou nd the
notion that water, as a human right, “should be ava ilable to all rega rdless 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 t aris, or cha rges to household
users, are an impor tant means of providin g ongoing funding for water supply sy stems,
achieving a sus tainable level of cost rec overy, and reducing waste or underva luation of
water as a resource.137 However, full cost re covery from tari s alone, as occu rred in
Cochabamba, “ is far from the norm.”138
To avoid imposing crippling taris, countrie s are shifti ng towards local c ommercial
nance, which is rei mbursed by user charges .139 Federal grants and loans are c ommon, and
nancing throu gh pollution charges a nd municipal bonds ha s 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 reli ance over time.141 Donors and internationa l nancial in stitutions
usually ai med for three to ve percent of household income covering w ater taris when
planning for water inf rastructure investment projects.142
According to the 2012 GWI/OECD Global Water Tari Survey, the average c ombined
water and wastewater t ari among 310 cities was US$1.98 per cubic meter (m3).143
Surprisingly, the lowest average residentia l tari s were found in water-poor countries
with Saudi Arabia c harging US$0.03/m3, and Cuba chargi ng US$0.04/m3.144 e
highest costs were fou nd in Australi a 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 pa id US$0.53/m3.146 e OECD report found th at 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, Ne w Zealand, a nd
132 Ibid.
133 Ibid.
134 Ibid at 966 .
135 Ibid at 967.
136 OE CD, supra not e 81.
137 Ibid.
138 Ibid at 80.
139 Ibid at 55 .
140 Ibid.
141 Ibid.
142 Ibid at 57.
143 Global Water Intelligen ce, “Water Tari Survey”, (2012) 13:9 Global Water Intelligence 37, online:
http://www.globalwaterintel .com>.
144 Ibid.
145 Ibid at 37-41.
146 Ibid.
147 OECD, supra note 81 at 57.
APPEAL VOLUME 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
Aordability doe s not simply demand that states oer the lowest possible rates for water
use, but it requires a consideration of fai r pricing to account for long term economic
and water needs. Environment Ca nada reported that t he National Round Table on
Environment and Economy found “unmet water and wa stewater infra structure nee ds
[…] 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 sucient to cover the true cost,
based on actua l quantity used. e Mun icipal Pricing Report found t hat the average
domestic water user paid C AD$1.26 for 1000 L in 2004, a rate which Environ ment
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 C anada is caus ed by a perceived super abundance ba sed on
statistics st ating Canada c ontains twenty p ercent of the water in all the world ’s lakes,
despite the fact that Ca nada only has 6.5 percent of the world’s total renewable water
supply.151 In countries like Ca nada where water is underva lued, a human rig ht to water
could possibly inhibit or cause delay i n adjusting water prices to ree ct 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 Can ada’s current expenditure on water infra structure
was US$7.88 billion with an average annua l investment projected to be US$2.75
billion by 2015, and US$4.38 billion by 2025.152 Accordi ng to the WHO, the costs
of implementing suitable water and sanitat ion systems in countrie s currently lacki ng
them would range from $135 – 327 billion.153 is cost wi ll be a major hurdle for water-
poor countries in which a hum an 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 sucient 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 ensu re that states provide acc ess to water even to those
who cannot aord it under the principle of fu ll cost recovery.155 It is clear f rom the
underpricing of water in Can ada that presently the govern ment is not pursuing a ful l
cost recovery on water use or in frastructure, even absent a human r ight to water.
Following the lesson from Coch abamba, total privat ization 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 aord to pay even relatively low ch arges. A human r ights approach may
be more valuable in developing countrie s where there is an actua l possibility of recovery
of the hundreds of billions requi red to build adequate water supply system s. Even so,
148 Ibid at 88, gu re 3.3.
149 Environment Canada, “ Withdrawal Uses: What is a Fair Price” (2006), online: Enviro nment Canada
150 Ibid.
151 John B Sprague, “G reat Wet North? Canada’s Myth of Water Abundance” in B akker, supra note 10,
23 at 25.
152 OEC D, supra note 81 at 42.
153 Ibid at 52.
154 Ibid at 52.
155 Bluemel, supra note 7 at 963.
146
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the OECD report shows that a var iety of approaches to nanci ng are being ta ken in
most developing countries .156 is approach decre ases the likel ihood of a single private
or state entity tak ing control over water supply systems, and ex ploiting or refusing to
provide water to local populations, w hich removes an incentive for the str ict human
rights approach.
As demonstrated in Lindiwe Ma zibuko and Others v. Cit y of Johannesburg and Others
(“Lindiwe”),15 7 protection from privatiz ation does not necessari ly ensure complete
aordability 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 re cognized. W hile a human rig ht to water could guide a countr y’s
approach to nancing and deter mining aord able taris to fu nd its water systems,
conscientious policyma kers could pursue an a ordable pricing regime abs ent 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 t hat everyone has t he right to have access to su cient
water.158 e court concluded that t he achievement of equality, a founding principle in
the constitution, cannot be ac complished “while water is abund antly available to the
wealthy, but not to the poor.”159
Johannesburg Water, the company that provides water ser vices to city residents,
estimated that one- quarter to one-third of al l water it purchased was d istributed to the
impoverished Soweto distric t with only one percent of revenue coming back due to the
failure of many residents to pay c onsumption charges.160 Fur ther, 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; con sumers would pay for any water used in e xcess of that a mount.163
e tari followed a risi ng block structure so t hat heavier water users pa id a higher
per kilolitre tari .164 Low-income households could regis ter as indigent, which requi red
them to obtain pre-paid meters but made t hem eligible for a yearly alloc ation of 4000
L for emergency use, and wrote o a ll arrear s 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 polic y, 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 OE CD, supra not e 81.
157 Lindiwe 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].
158 Constitution of th e Republic of South Africa, 1996, supra note 8, s 27(1)(b).
159 Lindiwe, supra n ote 15 7 at para 2.
160 Ibid at para 12.
161 Ibid.
162 Ibid at para 14.
163 Ibid at para 80 -81.
164 Ibid at para 80.
165 Ibid at para 81.
166 Ibid at para 14.
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for a meter seven months later.167 e Applicants arg ued that section 11 of the Wate r
Services Act conicted with se ction 27(1)(b) of the Constitution as the 25 L amount wa s
insucient and should have been set at 50 L .168 ey criticised t he scheme for being
inexible 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 t he attainment of const itutional
rights. Following precedent,170 t he court read sect ion 27(1) together with section 27(2),
which requires the govern ment to take reasonable meas ures within ava ilable resources
“to achieve the progressive rea lization of the right.”171
In response to the argu ment that the minimu m amount of water per person should be
changed, the cou rt made reference to ECOSOC ’s 1990 General Comment 3, which
contained simila r langua ge to Comment 15.172 Both C omments declare that st ates have
a “minimum core obligation” to ensure the sat isfaction of minimum e ssential levels of
each individual right.173 e court mainta ined “courts are il l-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 somethi ng relevant to reasonableness ,
not a self-standing rig ht conferred on everyone.174 As a resu lt, the minimum amou nt
under the city policy wa s not found to be insucient. e court upheld prior ru lings
rejecting the arg ument that social a nd economic rights in South A frica’s constitution
“contain a minimum core which t he state is obliged to furnish.”175
e diculty a nd variety of means of supplying water i n part determines what const itutes
“sucient 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 t hey did not meet the constitutiona l standard of
reasonablene ss.177 is sta ndard would not be met if the polic y made no provision for
those most desperately in need .178 e court found that progressive steps were exemplie d
in the city’s revision of its indigent policy to provide more water for poor hous eholds.179
e 6000 L allowa nce for all households wa s found reasonable becaus e 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 dist inguishi ng which households would be deser ving
of free water.180 Further, the court held th at the free allowa nce would provide average
households of 3.2 people with 60 L per person per day, which was f ar more than the
167 Ibid at paras 15-16.
168 Ibid at para 44 .
169 Ibid at para 44.
170 On “dening 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.
171 Lindiwe, su pra not e 157 at para 50.
172 Ibid at par a 40.
173 Ibid at para 52.
174 Ibid at paras 54-5.
175 Ibid 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 su pra note 170.
176 Lindiwe, sup ra note 157 at para 62.
177 Ibid at par a 67.
178 Ibid at para 67.
179 Ibid at para 95.
180 Ibid at 84.
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APPEAL VOLUME 19
prescribed minimum of 25 L.181 Increa sing minimum a mounts to benet 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 ma ndatorily insta lled based on
geographic area wa s justied as a power “reasona bly incidental to providing ser vices to
citizens in a sust ainable manner th at permits cost recover y.”183 is polic y reected the
reality that re sidents in Soweto had a history of faili ng to pay their water bills.184 e court
held that temporarily susp ending service to c ustomers with prepaid meters t hat 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 signic 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 recogni zing a human rig ht 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 d iminishes t he added protection of
having an absolute human r ight to water as this r ight must be realiz ed 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 qu antied content might, in a rig id 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 dened by C alabresi.187
ird, the court’s emphasis on progressive re alization a nd statement that it would be
overly burdensome to determine the monthly amount of fre e water on a per person
basis188 indicates t hat this huma n right can be sign icantly lim ited by administr ative
realities. e cour t seems will ing to limit the force of human r ights protection due to
its self-professed discomfor t in imposing costly positive obligations on the government.
Finally, the court found that tempor ary cut-o due to failure or ina bility to pay after
using the allott ed minimum free a llowance of water did not amount to a susp ension of
human r ights .189 is nding is c ontroversial on its face as a huma n right is intended
to be absolute and protected agai nst any alteration; yet it is clear t hat water shut-o
changes one’s living conditions and pre vents one’s daily water needs from bei ng fullled.
However, the court was understa ndably reluctant to hold the government to any positive
obligation to immediately provide water a s cost recovery t hrough tari s is necessa ry
in order to provide water at all. e ability to su spend water rights, and t he reasonable
181 Ibid at para 88.
182 Ibid at paras 88- 89.
183 Ibid a t pa ra 111.
184 Ibid at para 139.
185 Ibid at para 124.
186 Ibid at para 60.
187 Calabresi & Melamed, supra note 63.
188 Lindiwe, supra note 157 at paras 88 -89.
189 Ibid at para 124.
APPEAL VOLUME 19
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149
motivation to do so, suggests t hat a human rights f ramework is not appropriate where
water rights are concerned .
CONCLUSION
e human right to water was re cognized in t he 2002 CESCR Genera l Comment 15
as well as in a 2010 UN General A ssembly Declarat ion.190 While a huma n right to
water may appear attra ctive as a means of preventi ng water-borne disease and ensu ring
adequate supply of water for basic domestic needs, ma ny questions are rais ed 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 domest ic purposes from the prim ary right of an i ndividual to
own or occupy land.191 In South A frica, the government has entrenched an independent
human right to sucient supply of water with in its Constitution.192 However, the Lindiwe
case from South A frica shows that ava ilable resources li mit the human right to water.
Further, a human right to water does not perm it citizens to immediate ly demand
provision of water services, a nd does not guard ag ainst water shut-o for non-payment
of a water tari.193 e Matsipane c ase from Botswa na demonstrates the di culty in
dening a human r ight to water as a means of ach ieving other rig hts. e human right
to water in that case su ered from the questionable just iciability of positive rights. e
case also h inted at the tension between cons ervation needs and hum an needs as well
as the environmental c osts of delivery of water to indiv iduals who live in are as lacking
sucient water supplies.
e human rights fr amework does little to add protect ion to water rights beyond what
could be oered by a responsibly craf ted property rights-based re gulatory framework th at
manages ac cess and usag e of water through permitt ing systems. e abi lity 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 oers them a high degree of
protection. As the negotiated re solution of the Klamath B asin dispute demonstrate s,194
exibility and resp onsiveness to environmental conditions a re necessar y elements for
successfu lly addressing scarcity, and are inherent to property r ights-based regimes.
Yet exibility and responsiveness a re precisely what indivi sible, inalienable and non-
discriminator y human rights reg imes are created to avoid. Ina lienable rights, as noted
by Calabresi,195 ca nnot be negotiated, altered, or inter fered with. Water, however, is a
naturally oc curring entity that exists wit h or without humans, a nd that we cannot ex ist
without: it is already al ienated from us. Ironica lly perhaps, treatin g water as property
acknowledges it as a subs tance outside of human control, as somet hing to which we
must be granted a right a nd which should not be conned to being c onsidered rst and
foremost in terms of human consu mption.
190 Comment 15, supra note 1; The Human Right to Water and Sanitation, supra note 3.
191 Matsipane, supra no te 29.
192 Constitution of the Rep ublic of South Africa, 1996, supra note 8.
193 Lindiwe, supra n ot e 15 7.
194 Curran & Brandes, supra note 82.
195 Calabresi & Melamed, supra no te 63.
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