Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).
Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.
The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15" on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.
|South African Constitutional Court|
Petitioners challenged a policy implemented in a Soweto neighborhood that installed pre-paid meters (i.e. meters that cut off service when water has not been paid for) but also provided a certain amount of water for free on a per capita or per-household basis. Though lower Supreme Court of Appeal invalidated the policy as not always providing a sufficient amount of water, the Constitutional Court overturned this decision, ruling that the policy was not in violation of the Bill of Rights. This decision has been criticized as not giving sufficient protection to socio-economic rights (e.g. Wesson, 2011), but also supported as ecologically responsible and conducive to achieving inter-generational equality (Kotzé, 2010). It should be noted that South Africa is not alone in anchoring a right to water in its constitution; at least fourteen other countries do so, as well (May and Daly, 2015).
The idea of a human right to water has come in for criticism on a number of fronts. It has been critiqued as practically unenforceable (Thielbörger, 2013), in normative terms as being too consistent with the neoliberal trends in opposition to which it is invoked (Bakker, 2007), and empirically for failing improving access to water in practice (Anand, 2007). The concern has also been raised (Staddon et al., 2012) that the rights discourse will strengthen the hand of business interests opposing regulation of their property rights (or quasi-property, as administrative permits). Nonetheless, many (e.g. Mirosa and Harris, 2012) continue to argue for its relevance and importance.
That's it for this series, the full article is here.