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A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case

Published on January 13, 2010        Author: 

Peter Danchin is Associate Professor of Law at The University of Maryland Law School.  His recent articles have been published in the Journal of Law and Religion, the Yale Journal of International Law, and the Harvard International Law Journal. His most recent book United Nations Reform and the New Collective Security (with Horst Fischer) has just been published by Cambridge University Press.  In 1999, he served as a foreign law clerk to Chief Justice Arthur Chaskalson of the Constitutional Court of South Africa.

Is there a human right to sufficient or adequate water?  If so, what is the right’s normative basis, its scope and content, and how might this differ in international law, constitutional law, and the domestic law and policy of States?  These were the questions recently before South Africa’s Constitutional Court in Mazibuko v. City of Johannesburg (also known as “the Phiri case”) decided on 8 October 2009, the country’s first test case on the right to water.

The case is of interest for a number of reasons.  First, it is the most recent precedent in South Africa’s closely watched economic and social rights jurisprudence following in the wake of such decisions as Soobramoney (1998), Grootboom (2001), Treatment Action Campaign (TAC) (2002), Modderklip (2005) and Olivia Road (2008).  Second, it sheds critical light on the debate over whether economic and social rights have minimum legal content or a “minimum core” as posited by the UN Committee on Economic, Social and Cultural Rights in its 1990 General Comment No. 3 on the Nature of States Parties’ Obligations.  And third, it provides a useful case study of both the potential and limits of strategic public interest litigation and the justiciability and enforcement of economic and social rights in the national sphere.

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