Privatisation of the commons : water as a right; water as a commodity
CITATION: Moyo, K. 2011. Privatisation of the commons : water as a right; water as a commodity. Stellenbosch Law Review = Stellenbosch Regstydskrif 22(3):804-822.
The original publication is available at https://journals.co.za/content/journal/ju_slr
This contribution seeks to propose an accountability framework for States and non-State actors involved in the provision and management of water services. The article contends that States have a legal obligation under international human rights law to fulfill, respect, protect and promote the human right to safe and sufficient water for personal and domestic uses. While acknowledging both the potentially deleterious and beneficial implications of privatisation of water services, this article suggests two mutually reinforcing approaches to foreclose any breaches of the right. The first approach advocates for the strengthening of the State's duty to protect, in particular the putting in place of independent monitoring and regulatory mechanisms to ensure that the minimum conditions imposed by the right to water are not abridged. The difficulty of enforcing positive human rights obligations against non-State actors is now extant in literature. The second approach argues for a doctrinal progression towards the imposition of direct obligations on non-State actors engaged in the provision of water services, not only to impede the realisation of the right to water but also a positive obligation to provide minimum amounts of water for personal and domestic uses particularly in respect of poor and marginalised members of society.
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