When interests clash: the right to water in South Sudan*
Fiona Lubett Barrister-at-law, Brisbane, Australia

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Afshin Akhtarkhavari Associate Professor, Griffith Law School, Australia

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Access to water is a significant twenty-first century concern but the right to it, couched in the context of the human rights discourse, while often able to assist with short-term solutions, particularly in developing countries, lacks the longer-term ability to protect ecosystem services. The right to a healthy environment, by contrast, is much broader in its reach and has potential to provide for longer-term and broader solutions to development challenges, particularly for countries emerging from war and conflict. This article draws on the situation in South Sudan to explore and critique the utility of the right to water in post-conflict resolution efforts. Given that the White Nile, and water more generally, was central to the violence that led to South Sudan's independence from Sudan, water continues to be a currency (for consumption and also for the agricultural sector) in addition to oil, which is a major source of income for the new country. Article 41 of the Transitional Constitution for South Sudan provides for the protection of the environment, which this paper argues, is more in line with the human right to a healthy environment and is more suited to long-term developments; not just of South Sudan's economy but also to its peace-building agenda. South Sudan is likely to be much better served by continuing to build momentum around initiatives that take account of access to water in the broader context of protecting the environment that it is sourced from. In this sense, the article provides a critique of the utility of the right to water discourse as a means of ensuring that people in developing countries have access to it. It argues that the use of the language and discourse of the right to water must at times be subservient to other kinds of rights, especially if the water right is likely to be narrowly interpreted, prohibiting ecological considerations from being properly taken into account.

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