Water law and human rights - roles and responsibilities

2001 ◽  
Vol 43 (4) ◽  
pp. 143-150 ◽  
Author(s):  
Marna De Lange
Keyword(s):  
Water Management ◽  
South Africa ◽  
Human Rights ◽  
Financial Resources ◽  
Water Law ◽  
Roles And Responsibilities ◽  
Water Legislation ◽  
Practical Implications ◽  
National Water

This paper focuses on the experience of South Africa in introducing water legislation based on human rights principles (in particular the National Water Act of 1998) and reflects on some practical implications for the implementation of water management in a country with limited water and financial resources.

Evolution of the Greek national regime for water resources

Water Policy ◽  
2008 ◽  
Vol 10 (5) ◽  
pp. 481-500 ◽  
Author(s):  
Eleftheria Kampa ◽  
Hans Bressers
Keyword(s):  
Water Management ◽  
Institutional Context ◽  
Water Law ◽  
Regime Theory ◽  
Integrated Water Management ◽  
Water Policies ◽  
The Past ◽  
Public Resource ◽  
Resource Degradation ◽  
National Water

This paper characterizes and explains the development of the Greek national water regime, based on a framework from institutional resource regime theory. The specific framework combines public resource policies with property rights and operationalizes the concept of integration for resource regimes. The paper concentrates on attempts at more integrated water management in Greece (via important national water laws), which were mainly driven by increasing water resource degradation and EU water policies. It is argued that national attempts since the 1980s (especially the 1987 Water Law) were unsuccessful also under the influence of an unfavourable institutional context which prevailed at the time of the attempts. The outcome of a new 2003 Water Law in practice remains to be seen. The path to integration must involve significant efforts to overcome institutional obstacles which hindered integrated water management in the past.

scholarly journals Water Security and Judicial and Administrative Confusion in South Africa: The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 and Others v MEC for the Department of Water Affairs, Gauteng and Others Case nr 40514/2013

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Ed Couzens ◽  
Devarasi Maduramuthu ◽  
Adrian Bellengère
Keyword(s):  
South Africa ◽  
Water Use ◽  
Water Rights ◽  
Water Security ◽  
Water Law ◽  
Environment Protection ◽  
High Court ◽  
The North ◽  
Relative Scarcity ◽  
National Water

One of the gravest constraints which South Africa faces in its efforts to promote development and to lift much of its population out of poverty is the relative scarcity of its water. Significant changes were made to South Africa’s water law in the 1990s, especially with the promulgation of the National Water Act 36 of 1998. In terms of this Act a Water Tribunal was created which ought to have enhanced water security and to have provided a settled forum to adjudicate disputes and to assist in developing the jurisprudence of water law. Instead the Tribunal appears to have created almost as much confusion as clarity before it was dissolved in much uncertainty over whether it would continue in existence or not. A recent judgment in the Gauteng High Court (The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 and Others v MEC for the Department of Water Affairs, Gauteng and Others) has created uncertainty by departing from the precedent of a relatively recent judgment in the North Gauteng High Court (Escarpment Environment Protection Group and Wonderfontein Community Association v Department of Water Affairs and Xstrata Alloys (Pty) Ltd and The Water Tribunal). In the context of the uncertainty created by the falling into desuetude, at least between 2011 and 2016, of the Water Tribunal, and contradictory indications from National Government, litigants have been forced to seek other fora for remedies. On occasion, courts have been sympathetic and given sensitive judgments – on occasion they have not. Against this background of inconsistent jurisprudence, it is important that there be greater clarity of rights, duties and institutions, and that institutions become settled as soon as possible so that a consistent jurisprudence can begin to emerge in the water rights field. While the situation stabilizes, which it is hoped that it will soon begin to do, it is suggested that both courts and government act with circumspection in considering applications concerning water use rights; and be sensitive of the current uncertain circumstances when making decisions. The difficulties of ensuring water security and administrative fairness in South Africa demand nothing less.

Priority General Authorisations in rights-based water use authorisation in South Africa

Water Policy ◽  
2014 ◽  
Vol 16 (S2) ◽  
pp. 59-77 ◽  
Author(s):  
Barbara van Koppen ◽  
Barbara Schreiner
Keyword(s):  
South Africa ◽  
Water Resources ◽  
Sub Saharan Africa ◽  
Small Scale ◽  
Water Law ◽  
Constitutional Rights ◽  
Water Users ◽  
Large Numbers ◽  
Sub Saharan ◽  
National Water

This article unravels the notions of justice in statutory water law in Sub-Saharan Africa in general and South Africa in particular. These laws, which allocate and regulate water resources, are licence (or permit) systems. Three forms of injustices are identified for small-scale water users who typically encompass all poor water users: the reinforcement of the historical injustices by which colonial powers captured ownership of water resources and undermined customary water law; administrative discrimination as a result of governments' lack of capacity to license the large numbers of small-scale users; and discrimination of the smallest-scale users whose exemption from the obligation to apply for a licence relegates them to a second-class entitlement to water. Based on the texts and implementation experiences of the National Water Act (1998) and the pro-poor prioritisation rules in the National Water Resource Strategy-2 (2013), the authors propose the transformative legal tool of priority General Authorisations for black small-scale users to overcome these injustices. Via this tool all black small-scale users, including the poor, would obtain equal access to minimum quantities of water needed to progressively achieve constitutional rights to water, food, and non-discrimination, while the remaining water resources would be allocated to high-impact users through licences with strict and enforceable conditions.

Toward a Progressive Realisation of Socio-economic Rights in Ghana: A Socio-legal Analysis

2017 ◽  
Vol 25 (1) ◽  
pp. 91-113
Author(s):  
Nana Tawiah Okyir
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Social Movements ◽  
Supreme Court ◽  
State Policy ◽  
National Development ◽  
Building Blocks ◽  
Judicial Activism ◽  
Economic Rights ◽  
The Supreme Court

This article argues for the strengthening and entrenchment of socio-economic rights provisions in Ghana's jurisprudence. The purpose of this entrenchment is to engender judicial activism in promoting more creative pathways for enforcing socio-economic rights in Ghana. The article traces the development of socio-economic rights in Ghana's jurisprudence, especially the influence of the requirements of the international rights movement, particularly of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The article delves into the constitutional history of Ghana and its impact on the evolution of rights in the country. Of particular historical emphasis is the emergence of socio-economic rights under the Directive Principles of State Policy in the 1979 Constitution. However, the significance of the socio-economic rights only became profound with the return to democratic rule under the 1992 Constitution, again under a distinct chapter on Directive Principles of State Policy. However, unlike its counterpart, the chapter on the Fundamental Human Rights and Freedoms, which is directly enforceable, the Directive Principles of State Policy were not. It took the Supreme Court of Ghana a series of landmark decisions until finally, in 2008, it arrived at a presumption of justiciability in respect of all of the provisions in the 1992 Constitution. It is evident that prior to this, the Supreme Court was not willing to apply the same standards of adjudication and enforcement as it ordinarily applies in respect of rights under the chapter on Fundamental Human Rights and Freedoms. Having surmounted the non-justiciability hurdle, what is left is for the courts to begin to vigorously pursue an agenda that puts socio-economic rights at the centre of Ghana's rights adjudication framework. The article draws on comparative experiences from India and South Africa to showcase the extent of judicial creativity in rights adjudication. In India, the courts have been able to work around provisions restricting the enforcement of Directive Principles by often connecting them to Fundamental Freedoms. In South Africa, there is no hierarchy between civil and political rights on the one hand and socio-economic rights on the other; for that reason, the courts give equal ventilation to both sets of rights. The article further analyses these examples in the light of ongoing constitutional reforms in Ghana. It argues that these reforms fall short of the activism required to propel socio-economic rights adjudication to the forefront in Ghana's jurisprudence. In this regard, the article proposes social movements as a viable tool for socio-economic rights advocacy by recounting its success in previous controversial issues in Ghana. The article also connects this to other important building blocks like building socio-economic rights into a national development blueprint. Overall, the article calls for an imaginative socio-economic rights enforcement approach that is predicated on legislation, judicial activism, social movements and a national development blueprint aimed at delivering a qualitative life for the Ghanaian.

Humanitarianism, Human Rights and Biopolitics in the British Empire, 1890–1902

2016 ◽  
Vol 9 (1) ◽  
pp. 96-115 ◽  
Author(s):  
Anna Clark
Keyword(s):  
South Africa ◽  
Nineteenth Century ◽  
Human Rights ◽  
British Empire ◽  
Concentration Camps ◽  
Boer War ◽  
Personal Rights

The 1890s were a key time for debates about imperial humanitarianism and human rights in India and South Africa. This article first argues that claims of humanitarianism can be understood as biopolitics when they involved the management and disciplining of populations. This article examines the historiography that analyses British efforts to contain the Bombay plague in 1897 and the Boer War concentration camps as forms of discipline extending control over colonized subjects. Secondly, human rights language could be used to oppose biopolitical management. While scholars have criticized liberal human rights language for its universalism, this article argues that nineteenth-century liberals did not believe that rights were universal; they had to be earned. It was radical activists who drew on notions of universal rights to oppose imperial intervention and criticize the camps in India and South Africa. These activists included two groups: the Personal Rights Association and the Humanitarian League; and the individuals Josephine Butler, Sol Plaatje, Narayan Meghaji Lokhande, and Bal Gandadhar Tilak. However, these critics also debated amongst themselves how far human rights should extend.

A Call for Public Participation in the Treaty-making Process in South Africa: What can South Africa Learn from the Kingdom of Thailand?

2020 ◽  
Vol 53 (1) ◽  
Author(s):  
Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Public Participation ◽  
International Treaty ◽  
Legal Implications ◽  
Future Situation ◽  
Rules Of Procedure ◽  
The Republic ◽  
The Government ◽  
Personal Jurisdiction

On 2 August 2002 South Africa signed the Southern African Development Community (SADC) Protocol on Tribunal and the Rules of Procedure Thereof, thus effectively recognising and accepting the jurisdiction of the SADC Tribunal. Among the cases received by the SADC Tribunal was a complaint involving allegations of human rights violations by the government of Zimbabwe. It ruled that the government of Zimbabwe had violated human rights. Consequently, Zimbabwe mounted a politico-legal challenge against the existence of the Tribunal. This resulted in the review of the role and functions of the Tribunal in 2011 which resulted in the Tribunal being barred from receiving new cases or proceeding with the cases that were already before it. Furthermore, on 18 August 2014, the SADC Summit adopted and signed the 2014 Protocol on the Tribunal in the SADC which disturbingly limits personal jurisdiction by denying individual access to the envisaged Tribunal, thus reducing it to an inter-state judicial forum. This article critically looks at the decision of 18 August 2014, specifically the legal implications of the Republic of South Africa’s signing of the 2014 Protocol outside the permissible procedure contained in article 37 of the SADC Protocol on the Tribunal. It proposes that South Africa should correct this democratic deficit by introducing public participation in treaty-making processes in order to prevent a future situation where the executive unilaterally withdraws from an international treaty that is meant to protect human rights at a regional level. To achieve this, this article makes a comparative study between South Africa and the Kingdom of Thailand to learn of any best practices from the latter.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

Involuntary Circumcision of Males in Illegal Initiation Schools in South Africa: A Violation of African Customary Human Rights?

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Porsche Makama
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Cultural Beliefs ◽  
Young Men ◽  
Cultural Tradition ◽  
Constitutional Rights ◽  
Topical Issue ◽  
Community Members ◽  
Human Right ◽  
Traditional Practice

The incidence of deaths associated with the practice of forced and botched circumcisions at initiation schools has become a topical issue in South Africa. In recent times, the number of deaths and injuries among initiates has risen at an alarming rate, most of them occurring at illegal initiation schools. The continuous rise in the number of injuries among initiates at these schools has elicited mixed reactions among community members, some referring to it as genocide in the case of fatalities and calling for its abandonment, while others argue that this traditional practice should be allowed to continue. The majority of young men who go to initiation schools do not make the decision on their own, nor do they have a choice in the matter. Instead they are compelled by parents or guardians, influenced by friends, and also coerced by others in the community who insist that they have to ‘go to the mountain’, as initiation schools are generally referred to in South Africa. It has been argued by those against circumcision that this practice infringes constitutional rights and contravenes the Children’s Act 38 of 2005. There have been numerous instances where young and even mature males have been taken from the streets, or even from the comfort of their homes, and forced into circumcision camps with or without their consent. This begs the question whether the continued practice of a cultural tradition that violates the fundamental human right and freedom to choose religious and cultural beliefs is justifiable.

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