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Domestic Manifestations of International Law's Right to Water: A Comparative Analysis of Emerging Rights Obligations in Finland and South Africa

Document Cited authorities 3 Cited in Related
Vincent
Pages261-292
Date01 May 2017
AuthorAntti Belinskij,Oliver Fuo,Louis J. Kotzé
DOI10.3366/ajicl.2017.0194
Published date01 May 2017
INTRODUCTION

In July 2010, the General Assembly of the United Nations (UN) formally recognised the right to safe and clean drinking water and sanitation as a human right.1 The UN Human Rights Council subsequently adopted a resolution on the right to water in that same year.2 In 2012 the UN Special Rapporteur published guidelines on good practices in realising the rights to water and sanitation.3 At the African regional level, although the African Charter on Human and Peoples’ Rights4 does not expressly guarantee the right to water, the African Commission on Human and Peoples’ Rights (ACHPR) recognised and implied this right in other rights in 2010.5 Recognition at this high level is a significant milestone in the protracted and burgeoning debate that focuses on aspects related to access to water during the past decades.6 Yet, despite these important normative developments, the specific content and meaning of the right to water under international law continue to be rather abstract and unclear, especially in relation to the type and extent of the obligations emerging from the right.7 Reflecting on this uncertainty, it appears that the UN General Assembly's resolution on the right to water was not adopted by consensus, and the vote included 41 abstentions.8 Illustratively, the representative of the United States declared before the vote that the ‘draft resolution describes a right to water and sanitation in a way that is not reflective of existing international law … and the legal implications of a declared right to water have not yet been carefully and fully considered.’9

The right to water has been constitutionally entrenched and/or legislated in various domestic legal systems.10 In some instances this occurred well before the foregoing formal recognition of the right at the international level. But as is the case internationally, the exact meaning, normative status, resultant implications and obligations of the right at the domestic level are not always clear, and they could manifest differently in various domestic jurisdictions.11 This does little to promote legal certainty and predictability with respect to such an important right that relates to a life-sustaining and increasingly limited resource.12 This article provides a clearer description of the type and extent of the obligations that could flow from the right to water. For this purpose, against the backdrop of international law, we focus comparatively on the extent to which the right to water manifests in Finland and South Africa and the various ensuing legal obligations stemming from the right in these two countries.13 In doing so, we hope to illustrate the divergent approaches to realising the numerous obligations that might arise from the right to water in domestic legal systems.

As the discussion below will show, Finland and South Africa provide two extensive and very different constitutional frameworks to regulate the right to water. While the right to water is implied in the Finnish Constitution (731/1999), section 27 of the Constitution of the Republic of South Africa 1996 expressly guarantees everyone the right to have access to sufficient water. While the choice of these divergent jurisdictions may seem counter-intuitive to the extent that we could be seen to be comparing apples with pears, it provides the potential for contrasting juxtaposition and allows us to analyse and compare the right to water from two very different perspectives in two different contexts and in two different developmental realities with a view to sketching a wider spectrum of interpretative potentialities surrounding the right to water. The comparative worth of this study also lies in the consideration that the legal regimes of Finland and South Africa could be useful to explicate different approaches to the right to water in countries with different hydrological circumstances and in different stages of socioeconomic development. Although such a focused two-country analysis can never be fully representative of general trends in the North–South context, we also suggest more broadly that the resultant comparative lessons may provide a useful description of different approaches to the right to water in a developed northern (Finland) and developing southern (South Africa) context. This could usefully highlight the need for and extent of divergent approaches to the right to water alongside the so-called North–South divide.14

Our discussion is structured as follows. Because the domestic human rights regimes of constitutional democracies operate within a larger international law context, part II sets the scene by briefly illustrating the extent to which the right to water is provided for in international law. Part III flows from the initial analysis in part II and more specifically determines, as far as it is possible to establish this, the content and specific obligations arising from the right to water in an international context. Part IV examines the legal and factual background of Finland and South Africa in an attempt to provide an overview of how the right to water is constitutionally entrenched in both countries, as measured against prevailing socioeconomic and developmental conditions. Based on the legal implications of and some specific obligations that flow from the constitutional framework on the right to water in each country, part V investigates the obligations arising from the right as it is embedded in each county's legal system. To this end, our analysis specifically takes into account the legal formulation of the right to water and the extent to which courts, scholars and other interpretative fora have engaged with the right in both countries. We conclude the discussion with cursory comparative remarks in part VI.

 THE HUMAN RIGHT TO WATER IN INTERNATIONAL LAW

According to a General Assembly Resolution adopted in July 2010, the UN:

Recognises 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 human rights; [and]

Calls upon States and international organisations to provide financial resources, capacity-building and technology transfer, through international assistance and cooperation, in particular to developing countries, in order to scale up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all.15

 While this is the most recent and clearest international expression of the right to water yet, various other international instruments and declarations have preceded it that provide, to a greater or lesser degree, for the right to water. These include, among others, the International Covenant on Economic, Social and Cultural Rights (ICESCR),16 the International Covenant on Civil and Political Rights (ICCPR),17 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),18 the Convention on the Rights of the Child (CRC),19 the Convention on the Rights of Persons with Disabilities (CRPD),20 several resolutions of the Human Rights Council,21 General Comment No. 15 on the Right to Water (2002) of the Committee on Economic, Social and Cultural Rights,22 the reports of the UN High Commissioner for Human Rights23 and the Independent Expert on the Human Right to Water.24

Most notable among these, while it is related to the right to life in Article 6 of the ICCPR,25 the right to water is usually derived from Articles 11 and 12 of the ICESCR, in terms of which everyone has the right to an adequate standard of living including adequate food, clothing and housing, and to the enjoyment of the highest attainable standard of physical and mental health. The right to water is also relevant to the right to social security guaranteed in Article 9 of the ICESCR. The right to social security aims to guarantee benefits in monetary terms or in kind to secure protection from circumstances such as a lack of work-related income, insufficient family support or general conditions of poverty. A social security system is important for poverty reduction and is strongly linked to the rights to an adequate standard of living and health which, in turn, are directly related to the availability of water for domestic use.26 The realisation of the right to education in Article 13 of the ICESCR also depends on having access to water in the immediate vicinity of a home. Where there is no access to water, young people (especially girls) have to spend a considerable amount of time fetching water while being away from school.27 Evidently, while the right to water is therefore not a self-standing right in any of these human rights treaties, it is an integral element of aspects relating among others to the rights to adequate living conditions, the highest attainable standard of health and non-discrimination. Thus, the right to water is considered a conditio sine qua non for the optimal and collectively comprehensive realisation of the diverse but related aims of these international agreements.

In addition to the human rights treaties highlighted above, non-human rights in international water law also lend implicit support to the right to water. The Convention on the Law of the Non-Navigational Uses of International Watercourses states that a conflict between users of an international watercourse shall be resolved with special regard being given to the requirements of vital human needs.28 At the regional level, Article 6 of the United Nations Economic Commission for Europe (UNECE) Protocol on Water and Health29 aims to guarantee access to drinking water for everyone, thus providing an explicit international instrument for the translation of the right to water into practice.30

 THE RIGHT TO WATER AND ITS GENERIC OBLIGATIONS

The panoply of international instruments above does not include any specific criteria with respect to water quantity or quality, or with respect to the ways in which access to water is to be provided. Drinking water is...

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