Water Distribution in the Public Interest and the Human Right to Water: Swiss, South African and International Law Compared

This paper follows the idea that water should be used in the interest of the public. From a legal point of view the paper examines what the notion of ‘public interest’ actually means: it deals with the basic questions, such as how water regimes are currently structured and what role the public interest clause plays therein. It then asks which uses of water are to be considered as corresponding to the interests of the public; how competing interests are to be balanced against each other; and how particularly vulnerable interests of individual water users and environmental protection of waters can be attributed the status of paramount public interests. The paper is structured in two parts: the first explains the water law of two countries, Switzerland and South Africa, in which the public interest clause plays a key role in water distribution. In its second part, the paper introduces the human right to water in international, Swiss and South African law. It then points out the shortcomings of the human right to water (in relation to each of the three legal orders) if employed as a protective shield for basic water supply requirements in decisions on water distribution under the public interest clause. The paper concludes by stressing the need to evolve the legal protection of basic human needs because the human right to water — as conceived in international law, Swiss law and South African law — does not always meet the requirements to fully exercise its protective function.