Case studies

Water Solutions

Case 2: Legal Efforts to Guarantee the Right to Water in Latin America

Introduction

In the wave of privatization in the 1990s, multinational water companies concentrated their investments in the most urbanized continents of the global South – Latin America and East Asia – where the population is relatively affluent and economies of scale are possible. Privatization sparked immediate controversy as public dissatisfaction swelled against insufficient and inequitable water services. While a diverse set of social movements to defend water Commons have emerged throughout the world, these movements have gained particular urgency, strength, and focus in Latin America, a continent characterized by strong traditions of anti-imperialism and economic nationalism. Social movement efforts have included constitutional initiatives to enshrine the “right to water.” ***** case2.jpgOne of the most famous victories of the growing upsurge in securing the right to water occurred in Uruguay where groups successfully organized a national referendum on water rights. In 2002, the Uruguayan government signed a letter of agreement with the International Monetary Fund (IMF) in which the government promised to privatize public water services. Two concession contracts were signed in the province of Maldonaldo, transferring control over two public water utilities to Aguas del Costa (a subsidiary of the French multinational Suez) and Uragua (a subsidiary of the Spanish multinational Aguas del Bilboa). In response, in 2004 a citizens’ campaign coordinated by the National Commission in Defense of Water and Life, forced the government to adopt a constitutional amendment that declares water access a human right and guarantees that management would remain in the hands of the state. It was an important social movement victory and the fist time that the right to the environment was enshrined as a constitutional right. Similar amendment efforts on the right to water have now emerged in Bolivia, Colombia, Ecuador, El Salvador, and Mexico. While the initiatives to guarantee the legal “right to water” may provide a tool for social movement activists to make claims in national courts, the tool is weakened by lack of enforcement mechanisms. In Uruguay, for example, less than a year after the constitutional amendment was approved, the Tabaré Vázquez government produced an executive resolution stating that the private companies that signed concession contracts before the referendum would be allowed to continue their contracts. As Carlos Santos and Sebastián Valdomir argue, the Uruguayan government refused to follow through on the popular demand for fear that the companies would retaliate by bringing lawsuits against the government in international court. The companies’ investments are protected by bilateral investment treaties (BITs) that are backed by powerful means of enforcement through investor-state arbitration. As legal scholar Gus Van Harten describes, the international system of investor protection provided by BITs “goes well beyond other international regimes that permit individualized access to international governing institutions,” such as international human rights law and humanitarian law. In other words, while the right to water may be guaranteed in “soft” law, it is easily trumped by international treaties that seek to protect investors’ rights. Given the limitations of right to water initiatives, there is a growing sentiment that legal instruments alone are rather blunt tools to fight water privatization initiatives, and that social movements might also benefit by advancing the notion of “the Commons.” As Bolivian legal scholar Rocio Bustamente explains, “The basic idea is to rethink the concept of rights in relation to the management of natural resources such as water, which will allow for a more creative relationship with nature because natural resources are there for all of us to share, including non-human beings. We must start with the principle of solidarity, which transcends the idea of a ‘right.’ A ‘right’ always implies that we identify who is entitled to a given ‘right’, who is supposed to guarantee it, and who has legal standing. By contrast, if natural resources are thought of as a “Commons,” they do not belong to anyone in particular.” This lack of definition of ownership can be problematic – witness Garret Hardin’s Tragedy of the Commons – and its frequent misuse to claim that the commons concept is fatally flawed. Overlooked is how the Commons concept can aid in unleashing the creativity of public and civil society institutions in sustainably stewarding our precious, life-giving resources.

Questions

  • Do water justice movements need to choose between the language of “the Commons” or human rights?
  • How do we make sure that corporations and the wealthy do not compromise the spirit of laws promoting the right to water?

Notes and Links

See Bustamente’s 2007 article Debemos comenzar a cuestionar la idea del derecho al agua. See also the following articles:
  • Bakker, K. (2007), The “Commons” Versus the ‘Commodity’: Alter-globalization, Anti-privatization and the Human Right to Water in the Global South, Antipode 39(3): 430-455.
  • Santos, C. and S. Valdomir (2006), Uruguay: la democracia directa en la defensa del derecho al agua. Movimientos sociales y luchas por el derecho humano al agua en América Latina. ILSA. Bogotá, Colombia, Instituto Latinoaméricano de Servicios Legales Alternativos. 34: 171-179.
  • Van Harten, G. (2005). Private authority and transnational governance: the contours of the international system of investor protection, Review of International Political Economy 12(4): 600-623.
  • Uruguay’s National Commission in Defense of Water and Life.