Abstract

BULTO, Takele Soboka. The human right to water in the corpus and jurisprudence of the African human rights system. Afr. hum. rights law j. [online]. 2011, vol.11, n.2, pp.342-367. ISSN 1996-2096.

The effects of the absence of an explicit and comprehensive protection of the human right to water in the African Charter on Human and Peoples' Rights have been somewhat mitigated by the African Commission on Human and Peoples' Rights' purposive approach to the interpretation of other guarantees of the African Charter in a manner that envelopes the right to water. The African Commission grounded the legal basis of the right in provisions guaranteeing the right to health, the right to a healthy environment and the right to dignity. Yet, the Commission has failed to fully explain the normative status and content of the right. There also remains doubt as to whether the right is an autonomous entitlement per se or is an auxiliary guarantee that is used to ensure the realisation of other rights of the Charter. Besides, the legal basis of the right is rendered diffuse as the African Commission has located it in differing rights on a case by case basis. This has left the right to water on shifting and amorphous legal bases and entailed normative problems for the right holders as well as duty bearers. The article argues that the Commission has grounded the right on a narrowly-defined legal basis. It also contends that the Commission should follow the approach of the United Nations Committee on Economic, Social and Cultural Rights' General Comment 15 (2002), which declared an autonomous right to water and defined its normative content and related states' obligations.

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