Scholarly article on topic 'Obligations Arising from the Right to Water in Finland and South Africa'

Obligations Arising from the Right to Water in Finland and South Africa Academic research paper on "Law"

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Abstract of research paper on Law, author of scientific article — A. Belinskij, L.J. Kotzé

Abstract While the right to water is recognized as a human right, its precise legal implications remain unclear. This article discusses obligations related to the right to water in the constitutional contexts of Finland and South Africa by using a specific framework of obligations. It argues that the right to water first and foremost obligates public authorities to realize the right as best they can and not to lower the level achieved. Despite different legal systems, cultures, levels of development and contexts, the right to water can be sufficiently realized in various ways unique to a specific country.

Academic research paper on topic "Obligations Arising from the Right to Water in Finland and South Africa"

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Aquatic Procedia 6 (2016) 30 - 38

World Water Week 2015, WWW 2015

Obligations arising from the right to water in Finland and South

Africa

A. Belinskija* and L. J. Kotzéb

aSenior Researcher, LL.D. University of Eastern Finland, Pukkilantie 4 a 4, 00650 Helsinki, Finland bResearch Professor, North-West University, South Africa, Faculty of Law, Private BagX6001, North West University, Hoffman Street,

Potchefstroom, 2520, South Africa

Abstract

While the right to water is recognized as a human right, its precise legal implications remain unclear. This article discusses obligations related to the right to water in the constitutional contexts of Finland and South Africa by using a specific framework of obligations. It argues that the right to water first and foremost obligates public authorities to realize the right as best they can and not to lower the level achieved. Despite different legal systems, cultures, levels of development and contexts, the right to water can be sufficiently realized in various ways unique to a specific country.

© 2016 The Authors.PublishedbyElsevierB.V. This is an open access article under the CC BY-NC-ND license (http://creativecommons.Org/licenses/by-nc-nd/4.0/).

Peer-review under responsibility of the Stockholm International Water Institute

Keywords: right to water; legal obligations; comparative law; Finland; South Africa

1. Background, purpose and relevance

The General Assembly of the United Nations (UN) adopted a resolution on the right to safe and clean drinking water and sanitation as a human right in 2010 (UNGA, 2010a). The resolution marked a turning point in the long-running debate on the human right to water that has included various statements of normative intent such as the 1977 Mar del Plata Action Plan (UN Water Conference, 1977) and the 2003 General Comment No. 15 on the Right to Water by the UN Committee on Economic, Social and Cultural Rights (UNCESCR, 2003).

* Corresponding author. E-mail address: antti.belinskij@uef.fi

2214-241X © 2016 The Authors. Published by Elsevier B.V. This is an open access article under the CC BY-NC-ND license (http://creativecommons.Org/licenses/by-nc-nd/4.0/).

Peer-review under responsibility of the Stockholm International Water Institute doi:10.1016/j.aqpro.2016.06.005

Several scholars have also dealt with the human right to water and its domestic and international juridical and broader governance implications (Gleick, 1999; McCaffrey, 1992; McIntyre, 2012; Tully, 2005). More recently, the UN Special Rapporteur on the human right to safe drinking water and sanitation produced a comprehensive publication on good practices in realising the rights to water and sanitation (de Albuquerque and Roaf, 2012).

As a normative foundation for the human right to water, the UN General Assembly resolution recalled several key human rights treaties such as:

• The International Covenant on Economic, Social and Cultural Rights (ICESCR),

• The International Covenant on Civil and Political Rights (ICCPR),

• The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),

• The Convention on the Rights of the Child (CRC),

• The Convention on the Rights of Persons with Disabilities (CRPD) (UNGA, 2010a).

The ICESCR and ICCPR mention neither water nor sanitation, whereas water is mentioned in the CEDAW, CEC and CRPD in relation to the right to enjoy adequate living conditions, the right to health and the right to social protection without discrimination. Usually, the human right to water is derived from Articles 11 and 12 of the ICESCR that provide the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health. Incidental rights on which the right to water could be based also include the rights to life, human dignity and adequate food (UNCESCR, 2003).

Despite the long-running debate on the human right to water, it remains unclear precisely what legal obligations arise from it (McIntyre, 2012). Partly for this reason, it seems, the UN General Assembly resolution on the right to water and sanitation was only adopted after a vote that included 41 abstentions. Illustratively, the representative of the United States clarified before the vote that "the legal implications of a declared right to water have not yet been carefully and fully considered" (UNGA, 2010a, 2010b).

In light of the prevailing paucity as to the specific obligations that could arise from the right to water, our contribution aims to briefly illuminate the legal implications of the right to water at the national level. The article investigates and compares the constitutional frameworks of Finland and South Africa in order to clarify the obligations of the right to water (excluding the right to sanitation) in developed and developing countries. Through transnational lessons, it is possible to distil comparatively the various legal obligations that flow from the right to water as it is entrenched constitutionally and statutorily in the two countries.

The analytical methodology used is a legal doctrinal one with a specific emphasis on legal comparison, which includes an assessment of the legal implications of the sources of the right to water such as human rights treaties and national constitutions. Against the generally accepted State obligations to respect, protect and fulfil human rights (UNCESCR, 2003), we apply a more specific framework - largely following the Finnish discussion on socio-economic rights obligations (Karapuu, 1987; Tuori, 2011) - to determine and compare the obligations of the right to water in Finland and South Africa. In terms of this framework, the right to water may obligate public authorities:

■ to fulfil the justiciable substantive right of an individual,

■ to implement the right (implementation obligation),

■ not to lower the level achieved in the realization of the right (impairment prohibition obligation),

■ to take the right into account in the interpretation of law (interpretative obligation).

In addition to their application to public authorities, all or some of these obligations may apply to non-state parties such as private water companies (non-state party obligations) (Irujo, 2007).

Finland and South Africa are two interesting countries to compare since their circumstances differ significantly. While Finland is one of the world's water-richest countries that uses only 2 per cent of the total water flow for human

uses (Finnish Environment Institute, 2003), in South Africa the demand for water far exceeds its natural availability with 20 per cent of the total flow being used for human consumption (South Africa Yearbook, 2012/13). In Finland, virtually everyone has access to water, whereas in South Africa an estimated 9 per cent of the population lacks access to water only (WHO and UNICEF, 2013). In addition to large municipal utilities, there are numerous local water cooperatives owned by water services users that manage water services in Finland (Finnish Government, 2013). In South Africa, the primary obligation remains with the government (municipalities) to provide access to water, but often a semi-privatized system is used where non-state entities provide water services (Kotze and Fuo, 2016).

When it comes to legal systems, Finland is a civil law country that places emphasis on the Acts of Parliament (Niemi-Kiesilainen, 2007). The South African legal system is a hybrid system containing civil law as well as common and customary law elements, and it is strongly embedded in a paradigm of transformative constitutionalism with an emphasis on, for example, constitutional democracy and redistributive justice (Humby et al, 2013). It is notable that it is within this context that the South African government has over the past 20 years implemented a host of laws and policies to give effect to the right to water with a view to ensuring that (especially indigent) people have sustainable access to a basic water supply. It was estimated that at the dawn of the country's constitutional democracy less than 60 per cent of South Africans had access to clean drinking water (Algotsson and Murombo, 2009).

2. Analysis

2.1. Constitutional contexts

While the Finnish Constitution (731/1999) does not explicitly mention water, it is related to several incidental constitutional rights. The Constitution of the Republic of South Africa 1996 explicitly provides everyone the right to access to sufficient water and places a positive obligation on the government to progressively realize access to water through reasonable legislative and other measures (Section 27). In both countries, the right to water is fleshed out in greater detail in subsequent legislation.

In the Finnish Constitution, while the right to property (Section 15) provides the right to abstract household water, and the right to a healthy environment protects the quality of freshwater resources (Section 20), the right to water is linked more closely to the right to social security (Section 19). Among other things, the right to social security provides basic subsistence for individuals facing financial and other socio-economic difficulties:

Section 19 - The right to social security

Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.

Everyone shall be guaranteed by an Act the right to basic subsistence in the event of unemployment, illness, and disability and during old age as well as at the birth of a child or the loss of a provider. The public authorities shall guarantee for everyone, as provided in more detail by an Act, adequate social, health and medical services and promote the health of the population. Moreover, the public authorities shall support families and others responsible for providing for children so that they have the ability to ensure the wellbeing and personal development of the children.

The public authorities shall promote the right of everyone to housing and the opportunity to arrange their own housing.

From a statutory point of view, the right to water is most clearly reflected in the Finnish Water Services Act (119/2001) and Water Act (587/2011). According to the former, a municipality must make sure that appropriate measures are taken to secure the availability of sufficient water services (Section 6). The Water Act requires that the abstraction of household water is prioritized over other water uses (Chapter 4, Section 5). Collectively viewed, the

right to water in Finland, as reflected in the foregoing provisions, has not had a significant legal effect or practical impact - as will be illustrated in the following sections.

The Constitution of the Republic of South Africa 1996 provides everyone the right to have access to sufficient water and the corollary duty on government to take reasonable measures to achieve the progressive realization of the right:

Section 27 - Health care, food, water and social security

1. Everyone has the right to have access to

1. Health care services, including reproductive health care,

2. Sufficient food and water,

3. Social security, including, if they are unable to support themselves and their dependants, appropriate social

assistance,

2. The state must take reasonable legislative and other measures, within its available resources, to achieve the

progressive realization of each of these rights.

The content of the right to water is further defined in the South African Water Services Act (108 of 1997), which states that everyone has a right of access to basic water supply [Section 3(1)]. The basic water supply consists of minimum water supply services needed to support life and personal hygiene (Section 1(iii)). In addition, the detailed Regulations Relating to Compulsory National Standards and Measures to Conserve Water (2001) provide that the minimum standard for basic water supply services consist of a minimum quantity of potable water of 25 L per person per day or 6 kL per household per month: (i) at a minimum flow rate of not less than 10 L per minute; (ii) within 200 m of a household; and (iii) with an effectiveness such that no consumer is without supply for more than seven full days in any year.

South African courts have often dealt with the right to water as will be discussed in more detail below. The most well-known case in this respect is Mazibuko and Others v City of Johannesburg and Others (Mazibuko, South African Constitutional Court 2010) in which the applicants argued that 50 L of water per person per day was the amount required for living a dignified life, and not the statutorily prescribed 25 L.

2.2. Obligation to fulfil justiciable substantive rights

The concept of "justiciable substantive right" means a fundamental constitutional right that an individual can invoke in a court of law against public authorities as a basis of a lawsuit or appeal (Scheinin, 1995). The justiciable substantive right to water would require that the State had an obligation to provide immediate access to water for individuals. At the international level, Article 2 of the ICESCR indicates that States merely have to undertake steps within available resources with a view to progressively achieving the full realization of the Covenant rights. The General Comment No. 15 on the Right to Water by the UN Committee on Economic, Social and Cultural Rights suggests the idea of certain minimum core obligations related to the right to water, which are of immediate effect and entail a certain minimum quantity of water (UNCESCR, 2003); however, no international legal instrument provides a right to access to water with immediate effect with correlative State obligations.

In Finland, the constitutional right to social security is an atypical socio-economic right in the sense that it can give rise to substantive rights; the right to receive indispensable subsistence and care [Section 19(1)] directly obligates the State to provide such subsistence and care and an individual can invoke it in a court (Finnish Government, 1993; Tuori and Kotkas, 2008). It is indisputable that such subsistence and care includes access to water. However, the Parliamentary Ombudsman of Finland has stated that instead of relying directly on the right to indispensable subsistence and care, people had the right to apply for income support according to social security legislation if they were not able to pay for water services (Finnish Parliamentary Ombudsman, 1999). Thus, although the constitutional right to receive indispensable subsistence and care is a substantive right in Finland, the right to water must be based on subsequent enabling legislation whenever possible.

In Mazibuko the Constitutional Court was given an opportunity to interpret the nature of the obligations imposed by the right to access to water (Constitution, Section 27). In line with its earlier decision in Government of the Republic of South Africa and Others v Grootboom (Grootboom, South African Constitutional Court 2000), the Court rejected the applicants' view that the socio-economic right to water contains a minimum core that must be determined by courts and which the government is obliged to provide. The Court also rejected the view that the Constitution imposes a directly enforceable obligation on the State to provide sufficient water on demand to every person. This means that all that is required of the state is to show that it has adopted reasonable legislative and other measures within the context of available resources to progressively realize the right to water [Section 27(2)]. The obligation to fulfil the right of access to water in South Africa is therefore all but absolute.

2.3. Implementation obligation

In terms of international law, the State must undertake to take steps to adopt appropriate legislative and other measures to realize the right to water (Article 2 of the ICESCR; UNCESCR, 2003). Domestically, the Finnish Constitution requires the State to guarantee everyone the right to basic subsistence by an Act [Article 19(2)], and the South African Constitution obliges the State to take reasonable legislative and other measures to achieve the progressive realization of the right to water within available resources. According to Article 2 of the ICESCR, States have to realize socio-economic rights not only in the domestic context, but they must also assist other countries in realising domestic water provision obligations through international assistance and development co-operation. The wording, and accordingly the obligations flowing from these provisions, is typically vague and abstract, leaving considerable room for interpretation and regulatory manoeuvre, especially in the South African example.

The main statutes to implement the right to water in Finland are the above-mentioned Water Services and Water Acts as well as the Social Welfare Act (1301/2014) and the Social Assistance Act (1412/1997). The Water Services Act obliges a municipality to organize water services to satisfy the needs of a relatively large number of inhabitants, and it includes provisions on health considerations and environmental protection (Section 6). The Water Act prioritizes ordinary household use over any other water uses (Chapter 4, Section 5). Although Finnish social security legislation does not explicitly mention water, it provides for the basic subsistence that must cover the payments for reasonable water use (Tuori and Kotkas, 2008). The foregoing statutory aspects are fairly well implemented by authorities, relatively uncontroversial and work well in practice.

More interestingly in Finland, the implementation of the right to water has been discussed mostly in relation to Finnish international development co-operation. According to the Constitution, Finland participates in international co-operation for the protection of peace and human rights and for the development of society (Section 1). This correlates strongly with the obligations set out in Article 2 of the ICESCR discussed above. The Finnish Development Policy Programme subscribes to a human rights-based approach to development co-operation in relation to efforts that aim to realize access to water in foreign countries (Filmer-Wilson, 2005; Finnish Ministry for Foreign Affairs, 2012). For example, Finland has allocated over EUR 30 million in Ethiopia during 2009-2016 to support water sector programmes that aim to enhance water supply, sanitation and hygiene (Finnish Ministry for Foreign Affairs, 2016).

According to the South African Constitution, the State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of the right to access to sufficient water [Section 27(2)]. For this purpose, the government must remove all legal, operational and administrative obstacles that restrict access to water (Liebenberg, 2010), and it must provide basic water needs for individuals who cannot access water themselves (Fuo, 2014). Government policies that aim to facilitate the foregoing must be continually reviewed and revised (South African Constitutional Court, 2010).

The South African government has, however, a wide discretion when implementing the right to access to water. The Constitutional Court stated in Mazibuko that the government only has an obligation to demonstrate that it is implementing reasonable measures to progressively realize access to water for everyone: a considerably more restricted obligation than one that would have required the government to immediately provide water to everyone.

Nevertheless, the measures have to be comprehensive and the government must have a strong commitment, appropriate resources and coherent programmes to achieve the intended results. The government must be able to explain the choices it has made and the process followed in the determination of its policy (Fuo, 2014; Liebenberg, 2010; South African Constitutional Court, 2000).

2.4. Impairment prohibition obligation

The impairment prohibition obligation means that a State cannot lower the level achieved in the realization of the right to water (UNCESCR, 2003). According to the ICESCR, the State may subject the Covenant rights only to such limitations as are determined by law, and only insofar as this may be compatible with the nature of the rights, solely for the purpose of promoting the general welfare in a democratic society (Art. 4). To put the impairment prohibition into effect, the State should not limit the abstraction of household water or inhibit, prevent or refuse individuals' basic water services. In addition, the State should not allow other actors such as water companies to lower the level achieved in the realization of the right to water (Tuori, 2011; UNCESCR, 2003). Examples where the impairment prohibition might arise are the disconnection and high pricing of water services.

The Finnish Constitution obliges public authorities to guarantee the observance of liberties and basic rights (Section 22). While public authorities must refrain from interfering with these rights themselves, they also have to actively protect them against external infringement (Finnish Government, 1993). The constitutional rights can be restricted by a parliamentary Act, but the Constitutional Law Committee of the Finnish Parliament has determined that such restrictions cannot impact the core of constitutional rights: restrictions have to be proportional in relation to their objectives, and they must be necessary to achieve their objectives. In addition, the restrictions must be in line with international human rights obligations and cannot contradict these (Finnish Constitutional Law Committee, 1994).

In practice, the discontinuation of water services is not a contentious recurring issue in Finland. According to the Water Services Act, a water services utility may discontinue services if the customer has neglected payments or breached provisions or contractual obligations in relation to water services. However, discontinuation can occur only after five weeks from the first notification of the threat of discontinuation (Section 26) or after 10 weeks if failure to pay is due to financial difficulties caused by serious illness, unemployment or similar special causes. In the meantime, to prevent discontinuation, an individual has the right to claim necessary income support from the State (Parliamentary Ombudsman of Finland, 1999) and the State is obliged to provide such support on the basis of the constitutional right to social security. Effectively and in principle, an individual therefore has the right to continuous water services or at least sufficient means to ensure the continuation of water services.

The South African Constitution obligates the State to respect, protect, promote and fulfil all constitutional rights [Section 7(2)]. The obligation to respect means that the State must refrain from interfering with the right to water by, for example, arbitrarily depriving people of water (Fuo, 2014; Kok and Langford, 2005). The duty to protect requires the State to adopt and implement measures in order to prevent third parties such as private water companies from violating the right to water (Brand, 2005; Tissington, 2011).

However, it is possible to discontinue water services in South Africa in the event of non-payment. In Mazibuko, consumers had refused to pay for the amount of water that went beyond the levels of the city's free basic policy. While the Constitutional Court declared that the State has an obligation to refrain from interfering with the enjoyment of the right to access to water, it did not hold that the discontinuation of water services by the City of Johannesburg due to unpaid water services payments was in violation of this duty (South African Constitutional Court, 2010).

2.5. Interpretative obligation

The interpretative obligation means that the right to water should be taken into account in the interpretation of legislation. In Finland, a court must always attempt to avoid the conflict between an Act and the Constitution with a sound interpretation (Constitutional Law Committee of the Finnish Parliament, 1994; Tuori, 2011). Thus far, the

Finnish courts have not dealt with cases where the right to water would have clearly affected the interpretation of an Act. It is conceivable, however, that the constitutional right to social security could, for example, broaden the interpretation of the obligation to organize water services or restrict possibilities to discontinue such services (Sections 6 and 26 of the Water Services Act).

According to the South African Constitution, when interpreting any legislation, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights [Section 39(2)]. In addition, the Constitutional Court has competence to make a final determination on the constitutionality of Acts [Section 167(5)]. Mazibuko made it sufficiently clear that a litigant may rely on legislation or challenge the constitutionality of the legislation altogether to give effect to the right to water (South African Constitutional Court, 2010).

In addition, according to the South African Constitution, when interpreting the Bill of Rights, a court, tribunal or forum must consider international law [Section 39(1)] and prefer any reasonable interpretation of the legislation that is consistent with it (Section 233). The Constitutional Court has held that binding as well as non-binding instruments of international law can be used as interpretative tools vis-à-vis constitutional rights (South African Constitutional Court, 1995, 2000). In Mazibuko, the Constitutional Court illustratively referred to the ICESCR as well as to the General Comment No. 3 of the UNCESCR (South African Constitutional Court, 2010).

2.6. Non-state actor obligations

Non-state actors often operate water services, and the right to water may lead to non-state actor obligations if it is applied in a relationship between a non-state entity and an individual (Chirwa, 2002).

Municipalities own the biggest water service utilities that manage the bulk of water services in Finland. Yet by number, most of the utilities are private small-sized local co-operatives owned by water service users (Finnish Government, 2013). The constitutional obligation that lies on public authorities to guarantee the observance of constitutional and human rights (Section 22) also binds municipal authorities (Finnish Government, 1993). Based on the Finnish Constitution, it is not possible that private actors could be obliged to take steps to realize the right to water, for example, by being obliged to widen their water provision networks; this is an obligation that purely falls to the public authorities.

According to the South African Constitution, the State is principally responsible for the realization of the right to water (Section 27) (Welch, 2005). However, in terms of the horizontal application of the Bill of Rights (following the German Constitution's Drittwirkung), in some instances other obligations that arise from the right to water bind nonstate actors when applicable to them (taking into account the nature of the right and duty imposed by it) [Section 8(2)]. While it is unlikely that the panoply of positive socio-economic rights obligations that the right to access to water imposes on government would also apply to the private sector, at the very least, private parties are not allowed to interfere with or diminish the enjoyment of the right to water (South African Constitutional Court, 2011). In addition, when the responsibility of providing access to water is contracted to municipally owned utilities, the provider is expected to execute all the constitutional obligations related to the right to water in the same way the state would (South African Constitutional Court, 2010). Considering that public-private co-operation plays an important role in water supply, South Africa as well as Finland needs to pay closer attention to non-state actor obligations in the near future.

3. Conclusions

Finland and South Africa offer two contrasting, but for this reason informative, perspectives on the right to water. The example of Finland suggests that the right to water need not to be explicitly entrenched through specific reference in the Constitution if it can be derived from relevant constitutional rights such as social security rights. South Africa has followed a different route by including an explicit provision on the right to access to water in the Constitution. Our discussion suggests, however, that despite different legal designs, levels of socio-economic development and even

different legal cultures, the actual obligations arising from the right to water in the two countries resemble each other to a great extent.

The right to water has not resulted in substantive rights to receive water immediately in either Finland or South Africa. This approach is in line with the ICESCR, which reinforces the idea of the obligation to realize the right to water as far as possible within available resources by using expressions such as "undertakes to take steps" and "with a view to achieving progressively the full realization". The implementation obligation in relation to the right to water carries considerable weight at the international level as well as in Finland and South Africa. The ICESCR and the constitutions of both countries clearly oblige the State to implement the right to water through legislative and other measures. However, the implementation measures are defined by vague concepts such as "reasonable" and "appropriate". This ambiguity leaves considerable room for discretion for governmental bodies on how, to which extent and in which order the right to water is implemented. Therefore, adequate implementation of the right to water will always require strong political will to do so in the absence of absolute and concrete constitutional implementation obligations (Donoho, 2012).

The right to water gives rise to the impairment prohibition and interpretative obligations in both countries. For example, the discontinuation of water services is possible only in some limited situations. In Finland, the interpretative obligation has not had a notable effect in relation to access to water in practice. However, the right to access to water as well as other socio-economic rights in the South African Constitution have often been dealt with in South African courts, which have also referred to non-binding instruments of international law (South African Constitutional Court, 2000, 2010).

Collectively considered, the examples of Finland and South Africa illustrate that the right to water first obligates public authorities to realize the right as best they can and not to lower the level of water provision achieved. The right does not grant actionable substantive rights for individuals to receive water immediately. However, this (on the face of it) disappointing conclusion does not mean that the right to water does not carry with it numerous and far-ranging obligations. Our brief analysis has highlighted some of these obligations. Finally, the analysis has also demonstrated that despite different legal systems, cultures, levels of development and contexts, the right to water can be sufficiently realized in various ways unique to a specific country. It is thus unlikely that any state would be able to make a convincing argument that the right to water cannot be realized as a result of its being vague, indeterminate and unspecified.

Acknowledgements

The authors have participated in the research project 'Legal framework to promote water security' (WATSEC), financed by the Academy of Finland (268151).

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