Re-thinking the right to water: enhancing service provider accountability through participatory rights & strategic public interest litigation – South African and Irish experiences

Nankan, Sahara

Re-thinking the right to water: enhancing service provider accountability through participatory rights & strategic public interest litigation – South African and Irish experiences

Files

CCJHR WPS No 9 Sahara Nankan Re-thinking the Right to Water Sept 2018.pdf(688.42 KB)

Published version

Date

2018-09

Authors

Nankan, Sahara

Publisher

Centre for Criminal Justice & Human Rights (CCJHR), School of Law, University College Cork

Abstract

Over the past two decades there have been significant legal and policy shifts under both international and domestic law towards the recognition of the emerging right to water and sanitation. What unites them is their underlying attempt at articulating a suitable human rights approach to the increasingly acute global water crisis and the need for enhanced administrative justice in service-provider accountability. However, in doing so the limitations of ‘rights talk’ have crept into the discussion leading to an often paralyzing, and unhelpfully polarising, ‘public vs private debate’ in the discourse, as well as a reductionist and one-sided policy focus on the substantive right to water in the form of availability, access and quality control with scant improvements on the ground. This has led to the significant risk that this right will become a postpolitical empty signifier if the challenge of increasing its effectiveness is not met in a more nuanced and holistic manner. This paper therefore analyses the transformative legal potential that procedural rights hold for injecting meaningful content to this highly complex and politicised topic. It focuses on the lessons learned from public interest litigation failures in South Africa’s water justice movement over the past decade, despite a constitutional right to water, and emphasizes the need for enhancing access to information and robust community participatory rights. It compares and contrasts this to the recent Irish experience in public advocacy opposition to austerity-backed water charges and calls for a right to water in Ireland. It warns of the dangers of superficial or static ‘rights talk’, a misplacement of focus on the ‘public/private’ dichotomy and a lack of awareness civil society advocacy might have of the importance of judicial interpretation, especially with regards to socio-economic rights which the right to water is inevitably part and parcel of. By questioning how political factors may impact upon legal objectives in situ such an approach seeks to contribute towards giving this right more practical meaning and relevance in the future.

Keywords

Right to water , Administrative justice , Ireland , South Africa , Procedural rights

Citation

Nankan, S. (2018) 'Re-thinking the right to water: enhancing service provider accountability through participatory rights & strategic public interest litigation – South African and Irish experiences', CCJHR Legal Research Working Papers series, No. 9, Cork: CCJHR, University College Cork.