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Abstract: Governmental leaders, scholars, and activists have advocated for human rights to food, water, education, health care, and energy. Such rights, also called positive rights, would place an affirmative duty upon the state to provide a minimum quantity and quality of these goods and services to all citizens. But the characteristics of food, education, water, and health care are so different – in how they are produced, consumed, and financed – that the implementation of a positive right must be adapted to the distinctive characteristics of the good or service it guarantees. The primary aims of this adaptive implementation are transparency, enforceability and sustainability in the provision of positive rights. If a positive right is not adapted to its policy environment to achieve these aims, it will not be a viable means of protecting disadvantaged members of society. This Article uses the example of positive rights to public utilities, like water and energy, to illustrate adaptive implementation of positive rights. In doing so, this Article explains why and how a positive right must be adapted to public utilities’ unique policy environment.
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