The Global Water Crisis: Addressing an Urgent Security - Unu-inweh ...

water per person per day. The applicants maintained that the policy breached Section 27 of the Constitution because 25
litres of water was not sufficient for daily use. The trial court agreed, concluding that 50 litres of water per person per day
was the proper amount. The appeal court reduced this figure to 42 litres. On final appeal, the Constitutional Court found
that Section 27 did not require more free water than the City’s policy provided, and observed that the constitutional right
to water did not require courts to take over tasks that in a democracy should properly be reserved for the democratic
arms of government (Mazibuko, 2009: para. 161). Constitutional rights to water do not simply guarantee that sufficient
water will be provided to each person, but instead are subject to interpretations and qualifications that mean that they
are not as straightforward as they appear.
2.5. Prioritizes regulation at the expense of individual legal rights
Regulation has become the dominant form of water governance and, ironically, constitutional water rights confirm state
control of water. The human right to water in the South African Constitution provides government with the discretion to
develop policies and allocate resources (Mazibuko, 2009: para. 50). Legislation typically authorizes officials to balance
competing interests, and thereby to approve water pollution when its effects are judged to be less important that the
benefits it produces. Manufacturing facilities, farms, and other private commercial enterprises may receive permission to
extract large volumes of water and to pollute even when the direct or cumulative effects are detrimental to water quality
or quantity, because the benefits are deemed to outweigh these costs. Moreover, regulatory regimes create potential
conflicts of interest when government installations such as sewage treatment facilities and power plants themselves pollute.
The alternative to regulation is private legal rights, not of the ‘human rights’ variety. For example, in some common law
jurisdictions such as in Ontario, Canada, surface water is subject to the interests of riparian landowners, who possess
certain rights to quality and quantity which may be enforced against upstream owners (Young v. Bankier Distillery Company,
1893; McKie v. K.V.P. Co., 1948; Gauthier v. Naneff, 1971). Also, in some countries, accessing natural sources of water may
be considered an incident of land rights. In Mosetlhanyane and Matsipane v Attorney General of Botswana, the Botswana
Court of Appeal recognized the right of Bushmen to use an old borehole to extract water for domestic purposes, overturning
a government prohibition. The court found that the Bushmen had the right not to be interfered with on the lands that
they rightfully occupied. Their right to use the borehole did not consist of a right to be provided with water, or to have
the government cover the expense of using the borehole. The case could be interpreted as a vindication of the concept
of a human right to water, but that would not be an accurate reading of the judgement. Instead, the court states, “... the
appellants as lawful occupiers of the land in question merely seek, at their own expense, permission to use water from
a discarded existing borehole for domestic purposes...” (Mosetlhanyane, 2011: para. 16).
The success of private rights as a means to protect water resources depends in large measure on citizens’ access to an
independent judiciary, and on whether their rights are displaced by legislation that creates regulatory regimes in their stead.
2.6. Entrenches an ideology
Human rights to be provided with water are less about water than about ideology. They do not protect water resources from
pollution or depletion. They do not preserve ecosystems or the operation of water cycles. Instead, they are declarations
about who should pay the costs of providing water. The case for free water rests on the argument that water is essential
to life, and therefore it should not carry a cost. But providing water is costly, particularly in urban areas – for regulating
and enforcing watershed protection, for treating polluted water, and for infrastructure to deliver clean water and remove
waste. A right to free water does not eliminate the cost of providing the water, but instead demands that it be paid by
others, such as through general taxes or fees on some other commodity or service. By so doing, a right to be supplied with
water incorporates an ideology: water must be provided by government rather than by private means (Bluemel, 2004),
and the costs of water systems cannot be borne by those who use them. Positive rights to water demand a socialized
system of water provision, subsidized by some for the benefit of others. A constitutional provision of this nature removes
the democratic right of citizens to determine the ideological premises of the water system they wish to run.
‘Positive’ constitutional rights create entitlements governments must actively provide. Governments have an unlimited
capacity to provide negative rights, since they require merely that citizens be left alone, while positive rights require
governments to take from some to give to others (Cross, 2000-2001). Negative rights place limits on the state’s ability to
False Panacea: The Human Right to Water
Part 3
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