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Special Edition 1
Source: Potchefstroom Electronic Law Journal 20, pp 1 –3 (2017)More Less
The North-South Dimensions of Water Security Symposium was held at the North-West University, Potchefstroom from the 14th to the 15th of May, 2015. Through the generous funding of the Academy of Finland (268151), under the research project “Legal framework to promote water security” (WATSEC), we were able to gather approximately 13 speakers representative of the North and South. The 4 papers in this peer-reviewed edition emanate from this symposium.
Author T. KuokkanenSource: Potchefstroom Electronic Law Journal 20, pp 1 –22 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1652More Less
The article explores water security from an international law point of view. The article argues that in order to better understand water security it is important to focus on the function of international water law. Even though water security is a relatively recent concept it was latent in the process of the evolution of international water law.
In addition, the article examines the relationship between man and water from the point of view of water security. The article seeks to answer the question: how does international water law deal with that relationship? Is water only an object to be utilised and protected or has the relationship become more complex and ambivalent through the occurrence of various extreme events.
Furthermore, the article places the concept of water security into a historiographical and substantive context. It explores three broad approaches by international law to water issues: general international law, the regulatory approach and the management approach. The article argues that they are all relevant to water security.
Finally, the article seeks to demonstrate that even though water security has emerged as a new notion, this does not mean that international law does not include rules and principles relevant for water security. Indeed, many general principles of international law are applicable in the context of water security. In addition, specific regulations dealing with water quantity and quality issues have been developed in international environmental law, although they are not necessarily labelled as water security rules. Moreover, various risk management methods have been elaborated to deal with water-related disasters and crises. Reciprocally, water security arguments are not necessarily new notions but rather reflect already existing concepts and principles.
Author T. HonkonenSource: Potchefstroom Electronic Law Journal 20, pp 1 –26 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1651More Less
Climate change will bring about unprecedented economic, social and environmental effects, which require both the mitigation of greenhouse gas emissions and adaptation to its adverse effects. Water is the main element through which the impacts of climate change will be felt. Climate change results in increased uncertainties, complexities, stress and potential for conflicts within water management, both among and within states. New forms of governance are needed if the world is to respond to the need to adapt to changes in freshwater supply and to manage water security risks.
This paper suggests that adaptive governance should to be main-streamed into all water regulation to ensure the availability of and access to safe water resources and to prevent water-related conflicts. The paper discusses the concept of water security in the context of climate change, the threats that climate change poses to water security, and the concept and implications of adaptive governance as a possible solution.
The application of adaptive governance requires a certain degree of institutional and normative flexibility, instruments and institutions that can respond and adapt to changes and manage the level of uncertainty associated with the impacts of climate change. The governance institutions, methods and instruments should be responsive to new information and different kinds of uncertainties, while reflecting the vulnerabilities, capacities, needs and priorities of both societies and ecosystems in the face of climate change. Water security risks could be reduced by increased hydrosolidarity among states, which would present the challenges posed by climate change on water governance and security as primarily an opportunity for new forms of cooperation.
Water security and judicial and administrative confusion in South Africa : The Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 v MEC for the Department of Water Affairs, Gauteng 2015 ZAGPPHC 211 (17 April 2015)Source: Potchefstroom Electronic Law Journal 20, pp 1 –26 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1686More Less
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 (Trustees of the Time Being of the Lucas Scheepers Trust, IT 633/96 v MEC for the Department of Water Affairs, Gauteng) 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 stabilises, 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.
Author C.B. SoyapiSource: Potchefstroom Electronic Law Journal 20, pp 1 –26 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1650More Less
The Southern African region's water-related problems are quite diverse. From the struggles of indigenous communities in Botswana to the cholera outbreaks in Zimbabwe; from the difficulties of poor communities in accessing basic water services to the disputes between municipal councils and individual well-to-do water users, it is abundantly evident that water security is a goal/vision that needs to be pursued by governments. Yet, much of the holistic scholarly focus on water security within the region has been on transboundary water management, to the exclusion of local/national water constitutional frameworks. Through four cases from Botswana, South Africa, Zambia and Zimbabwe the paper addresses selected aspects of the varied water issues, in particular the constitutional right to water and how that impacts on water security within the region. The literature and case law reviewed in the paper indicate that while there are benefits to constitutionalising the right to water as a fundamental right, courts are still able to read the right to water into existing rights, especially the right to life. However, reading in has its own limitations, including that courts sometimes leave hanging/unpronounced government duties/responsibilities where the right to water is not provided for. Accordingly, the paper attempts to show that while the right to water could be read into other existing rights like the right to life, water security could be better achieved through an independent constitutional human right to water, which creates constitutional duties on the state.
The Search for Environmental Justice, P. Martin, S.Z. Bigdeli, T. Daya-Winterbottom, W. Du Plessis and K. Kennedy (Eds.)Author A.J.N. GeduldSource: Potchefstroom Electronic Law Journal 20, pp 1 –3 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1654More Less
A Liberal Actor in a Realist World the European Union Regulatory State and the Global Political Economy of Energy, C. Rautenbach (Ed.)Author Willemien Du PlessisSource: Potchefstroom Electronic Law Journal 20, pp 1 –6 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1681More Less
Author Jacques L. MattheeSource: Potchefstroom Electronic Law Journal 20, pp 1 –5 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1713More Less
Author Willemien du PlessisSource: Potchefstroom Electronic Law Journal 20, pp 1 –10 (2017) http://dx.doi.org/10.17159/1727-3781/2017/v20n0a1682More Less