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Maude Barlow
Maude Barlow is the head of the Council of
Canadians and founder of the Blue Planet Project. She was a recipient of Sweden’s Right
Livelihood Award (the “Alternative Nobel”). She is the author (with Tony
Clarke) of Blue Gold. This article is adapted with her permission from chapter
5 of her book, Blue Covenant: The Global Water Crisis and the Coming Battle for
the Right to Water (New Press, 2007).
Blue Covenant: The Alternative Water Future
by Maude Barlow
The three
water crises—dwindling freshwater supplies, inequitable access to water, and
the corporate control of water—pose the greatest threat of our time to the
planet and to our survival. Together with impending climate change from fossil
fuel emissions, the water crises impose some life-or-death decisions on us all.
Unless we collectively change our behavior, we are heading toward a world of
deepening conflict and potential wars over the dwindling supplies of
freshwater—between nations, between rich and poor, between the public and the
private interest, between rural and urban populations, and between the
competing needs of the natural world and industrialized humans.
Humanity
still has a chance to head off conflict and war in relation to the global water
crisis. We could start with a global covenant on water. The Blue Covenant
should have three components: a water conservation covenant from people and
their governments that recognizes the right of the earth and of other species
to clean water, and pledges to protect and conserve the world’s water supplies;
a water justice covenant between those in the Global North who have water and
resources and those in the Global South who do not, to work in solidarity for
water justice, water for all, and local control of water; and a water democracy
covenant among all governments acknowledging that water is a fundamental human
right for all. Therefore, governments are required not only to provide clean
water to their citizens as a public service, but they must also recognize that
citizens of other countries have the right to water as well and to find
peaceful solutions to water disputes between states.
A good
example of this is the Good Water Makes Good Neighbors project of Friends of
the Earth Middle East, which seeks to use shared water and the notion of water
justice to negotiate a wider peace accord in the region. Another example is the
successful restoration of the beautiful Lake
Constance by Germany, Austria,
Lichtenstein, and Switzerland,
the four countries that share it.
The Blue
Covenant should also form the heart of a new covenant on the right to water to
be adopted both in nation-state constitutions and in international law at the
United Nations. To create the conditions for this covenant will require a
concerted and collective international collaboration and will have to tackle
all three water crises together with the following alternatives.
Water
Conservation
The
alternative to crisis one—dwindling freshwater supplies—is conservation. A
great deal of work has been done to document the ways in which we can save the
planet’s water systems. The knowledge and recommendations are there; what we lack
is political will. The first and most important step is the restoration of
watersheds and the protection of water sources. Slovakian scientist Michal
Kravçik and his colleagues believe that our collective abuse of water is the
most important factor in climate change and warn that with time, our current
behavior will completely destroy the hydrologic cycle. They argue that the only
solution is the massive restoration of watersheds. Bring water back into
parched landscapes, they argue. Return water that has disappeared by retaining
as much rainwater as possible within the country so that water can permeate the
soil, replenish groundwater systems, and return to the atmosphere to regulate
temperatures and renew the hydrologic cycle. All human, industrial, and
agricultural activity must conform to this imperative, a project that could
also employ millions and alleviate poverty in the Global South. Our cities must
be ringed with green conservation zones and we must restore forests and
wetlands—the lungs and kidneys of freshwater.
Three basic
laws of nature must be addressed. First, it is necessary to create the
conditions that allow rainwater to remain in local watersheds. This means
restoring the natural spaces where rainwater can fall and where water can flow.
Water retention can be carried out at all levels: roof gardens in family homes
and office buildings; urban planning that allows rainwater to be captured and
returned to the earth; water harvesting in food production; and capturing daily
water discharge and returning it clean to the land, not to the rising oceans.
Second, we
cannot continue to mine groundwater supplies at a rate greater than natural
recharge. If we do, there will not be enough water for the next generation.
Extractions cannot exceed recharge just as a bank account cannot be drawn down
without new deposits. Governments everywhere must undertake intensive research
into their groundwater supplies and regulate groundwater takings before their
underground reservoirs are gone.
Third, of
course, we must stop polluting our surface and groundwater sources and we must
back up this intention with strict legislation. Martin Luther King Jr. said,
“It may be true that the law cannot change the heart but it can restrain the
heartless.” Legislation should also include penalties for domestic corporations
that pollute in foreign countries. Water abuse in oil and methane gas
production must stop. Much has been written on the harm to water of industrial
and chemical-based agriculture and flood irrigation. In their 2007 book, Who
Owns the Water?, editors Klaus Lanz, Christian Rentsch, Rene Schwarzenbach, and
Lars Müller call for a Blue Revolution in agriculture, getting “more crop per
drop” and a cessation of the mass use of chemicals to grow food. They point out
that today, farmers around the world use six times more pesticides than they
did fifty years ago. We must listen to the many voices sounding the alarm
around the rush toward water-guzzling biofuel farming, a new and dangerous use
of productive farmland, heavily subsidized by many governments. Sandra Postel
and others point the way to more sustainable food production systems including
the use of drip irrigation.
The
International Forum on Globalization has written extensively on the notion of
“subsidiarity,” whereby nation-state policies and international trade rules
could support local food production in order to protect the environment and
promote local sustainable agriculture. Such policies would also discourage the
virtual trade in water, and countries could ban or limit the mass movement of
water by pipeline. Government investment in water and wastewater infrastructure
would save huge volumes of water lost every day in old or nonexistent systems.
Domestic laws could enforce water-harvesting practices at every level.
Kravçik is
no wide-eyed idealist. He knows that this nature-based solution challenges the
deepest tenets of economic globalization and the growth imperative behind it.
(The late American environmentalist Edward Abbey said that growth for the sake
of growth is the ideology of the cancer cell.) Kravçik also knows that this
plan would undermine the massive investment now going into technological
solutions such as desalination, wastewater reuse, and nanotechnology. “The
tragedy of our solution,” he writes, “is that it is not a magnificent and
attractive technical-engineering business for big companies to invest in, but
rather a community program aimed at meticulous care of thousands of people.” He
calls on governments and international institutions to save the Blue Planet by
means of “community sustainable development programs” that would be many times
cheaper than the technology they are supporting and protect biodiversity and
prevent natural disasters and wars.
Many
examples abound, from the New Mexican “Acequia” system that uses an ancient
natural ditch irrigation tradition to distribute water in arid lands to
Rajendra Singh’s water harvesting project in India. The International Rainwater
Harvesting Alliance based in Geneva
works globally to promote sustainable rainwater harvesting programs and
government and United Nations support for them. Kravçik says we have ten years
to implement these reforms. Simply put, the water in the hydrologic cycle will
provide for us forever if we care for it and allow the earth to renew it.
Water
Justice
The
alternative to crisis two—inequitable access to water—is water justice, not
charity. Millions of people live in countries that cannot provide clean water
(or health care or education) to their citizens as they are burdened by their
debt to the World Bank and the International Monetary Fund. As a result, poor
countries are forced to exploit both their people and their resources, like
water, to pay their debt. Groups and networks such as Jubilee South, Make Poverty
History, and ActionAid report that at least sixty-two countries need deep debt
relief if the daily deaths of thousands of children are to end. As well,
foreign aid in many northern countries falls far below the recommended 0.7
percent of GDP. The United States,
for instance, spends only 0.17 percent of its GDP on overseas aid, and under
the Bush administration, conditions that aid on the promise of open markets for
U.S.
corporations.
What many
of these corporations are doing in the Global South is criminal, imposing a new
form of colonial conquest dressed up as the one and only economic model
available. In many countries, North American and European companies receive
multiyear tax breaks and treat both the population and the local environment
with contempt. As Dr. Dale Wen with the International Forum on Globalization
explains, one cannot just condemn “China’s pollution problem” without
condemning the foreign transnationals causing so much of the damage on Chinese
soil. First world governments need to take control of their corporate nationals
in foreign countries. Canadian mining companies, for instance, are known
environmental abusers and should be held to account for their actions by the
Canadian government.
The water
companies are among the worst and should be forced to leave poor countries. If
the World Bank, the United Nations, and northern countries were serious about
providing clean water for all, they would cancel or deeply cut the third world
debt, substantively increase foreign aid, fund public services, tell their big
bottling companies to stop draining poor countries dry, and invest in water
reclamation programs to protect source water. They would also tell the water
companies that they no longer have any say in which countries and communities
receive water funding. Citizens of first world countries need to recognize and
challenge the hypocrisy of their governments, many of whom would never permit
foreign corporations to run and profit from their water supplies, but who
continue to support the global financial and trade institutions that commodify
water in the third world. Many in the water justice movement work with fair
trade groups to create a whole new set of rules for global trade based on
sustainability, cooperation, environmental stewardship, and fair labor
standards. They also promote a tax on financial speculation; even a modest tax
could pay for every public hospital, school, and water utility in the Global
South.
Special
mention must be made of two groups feeling the brunt of water inequity: women
and indigenous people. The Women’s Environment and Development Organization
(WEDO), an international advocacy organization that seeks to increase the power
of women worldwide as policymakers, reminds us that women carry out 80 percent
of water-related work throughout the world and therefore bear the brunt of
water inequity. Water is a critical component of gender equality and women’s
empowerment, along with environmental security and poverty eradication, asserts
WEDO. The more policymaking about water is moved from local communities to a
global level (the World Bank, for instance), the less power women have to
determine who gets it and under what circumstances. As the primary collectors
of water throughout the world, women must be recognized as major stakeholders
in the decision-making process.
Indigenous
people are particularly vulnerable to water theft and appropriation, and their
proprietary rights to their land and water must be protected by governments. In
a call to action on International Water Day 2007 called Honor the Water,
Respect the Water, Be Thankful for the Water, Protect the Water, the Indigenous
Environmental Network (IEN) points out that many of the resources being
plundered by governments and corporations of the Global North lie on ancestral
lands. The ensuing exploitation, privatization, and contamination upsets the
balance of cultural resources and sacred sites, says IEN, which has issued a
challenge to “raise the Indigenous voice in defense of Sacred Water.”
Water
Democracy
The
alternative to crisis three—the corporate control of water—is public control.
The creation of a worldwide water cartel is wrong ethically, environmentally,
and socially and ensures that the decisions regarding the allocation of water
are made based on commercial, not environmental or social, concerns. Private
transnational corporations cannot maintain a competitive position in the water
industry if they operate on the principles of water conservation, water
justice, and water democracy. Only governments, with their mandate to work in
the public good, can operate on these principles. Water corporations, be they
utilities, bottled water companies, or the new water reuse industry, are
dependent on increased consumption to generate profits and will never be able
to seriously join the effort to protect and conserve source water. Further, the
control of water supplies by corporations, usually foreign, dramatically
reduces the democratic oversight of the communities and countries in which they
operate. Water must be understood to be part of the global commons but clearly
subject to local, democratic, and public management. There are many
alternatives to the corporate control of water and countless examples of where
it is working.
Public
Services International (PSI) and the World Development Movement have done a great
deal of work on alternatives to private control of water services and advocate
public-public partnerships (PUPS). As David Hall and Emanuele Lobina explain in
Water as a Public Service, water utilities have to have political power, public
legitimacy, legal powers, financial resources, and a sustainable labor force.
Established water operators in both the North and South have developed these
capacities. But many in the South have not been able to do so yet. PUPS are a
mechanism for providing capacity building for these countries, either through
Water Operator Partnerships, whereby established public systems transfer
expertise and skills to those in need, or through projects whereby public
institutions such as public sector unions or public pension fund boards use
their resources to support public water services in developing countries. The
objective is to provide local management and workers with the necessary skills
to deliver water and provide wastewater services to the public.
Examples of
successful PUPS include partnerships between Stockholm
and Helsinki water authorities and the former
Soviet Union countries of Estonia,
Latvia, and Lithuania and between Amsterdam Water and cities
in Indonesia and Egypt. PSI
asserts that, if each effectively functioning public water utility in the world
were to “adopt” just three cities in need, PUPS could operate on a global
basis, and provide water to all those in need at a fraction of the cost now
encountered supporting the private companies. This would also become a concrete
example of how cooperation over water could be a uniting force for humanity.
In its
March 2007 publication, Going Public: Southern Solutions to the Global Water
Crisis, the World Development Movement gives examples of four successful local
public water systems in Porto Alegre, Brazil; Tamil Nadu, India; Phnom Penh,
Cambodia; and Kampala, Uganda. It finds that where all are different and
provide local solutions to local problems, all have in common a commitment to
efficiency, accountability, transparency, and community participation. PSI has
also written extensively on financing public water and recommends a combination
of progressive central government taxation, micro-financing, and cooperatives
to run the systems on a day-to-day basis. To finance capital investments, PSI
recommends borrowing from public sector national and international sources to
shield countries and investors from currency risks. Development banks should
get back to the role they were created for and invest in efficient, accountable,
transparent, and democratic not-for-profit public systems.
Corporate
control of water in other areas must be confronted as well. That is not to say
there is no role for the private sector in finding solutions to the global
water crisis. But all private sector activity must come under strict public
oversight and government accountability, and all would have to operate within a
program whose goals are conservation and water justice. There would be a very
different role for the private water reuse technology industry if the world
were to adopt Michal Kravçik’s rainwater harvesting solution as well as strict
anti-pollution and source protection laws. The future would not include
thousands of desalination plants ringing the world’s oceans or machines sucking
rainwater out of the clouds. Nor would there be a reason, real or perceived, to
drink bottled water.
But
governments cannot wait for these changes to implement strict controls over the
water reuse technology industry and all government investment in this sector
must clearly be geared toward the public good. Similarly, in countries or
communities where bottled water is still the only safe water to drink,
governments must control the bottling industry, insisting that it be
sustainable, locally run, and publicly controlled, and the bottles themselves
recyclable. The end goal, however, must be to do away with the need for bottled
water everywhere.
The Right
to Water: An Idea Whose Time Has Come
Finally,
the global water justice movement is demanding a change in international law to
settle once and for all the question of who controls water. It must be commonly
understood that water is not a commercial good, although of course it has an
economic dimension, but rather a human right and a public trust. What is needed
now is binding law to codify that states have the obligation to deliver
sufficient, safe, accessible, and affordable water to their citizens as a
public service. While “water for all, everywhere and always” may appear to be
self-evident, the fact is that the powers moving in to take corporate control
of water have resisted this notion fiercely. So have many governments, either
because, in the case of rich governments, their corporations benefit from the
commodification of water or, in the case of poor governments, because they fear
they would not be able to honor this commitment. So groups around the world are
mobilizing in their communities and countries for constitutional recognition of
the right to water within their borders and at the United Nations for a full
treaty that recognizes the right to water internationally. (The terms covenant,
treaty, and convention are used interchangeably at the United Nations.)
Rosmarie
Bar of Switzerland’s Alliance Sud explains that behind the call for a binding convention
or covenant are questions of principle. Is access to water a human right or
just a need? Is water a common good like air or a commodity like Coca-Cola? Who
is being given the right or the power to turn the tap on or off—people,
governments, or the invisible hand of the market? Who sets the price for a poor
district in Manila or La Paz—the locally elected water board or the
CEO of Suez [a leading transnational water service corporation]? The global
water crisis cries out for good governance, says Bar, and good governance needs
binding, legal bases that rest on universally applicable human rights. A UN
covenant would set the framework for water as a social and cultural asset, not
an economic commodity. As well, it would establish the indispensable legal
groundwork for a just system of distribution. It would serve as a common,
coherent body of rules for all nations, rich and poor, and clarify that it is
the role of the state to provide clean, affordable water to all of its
citizens. Such a covenant would also safeguard already accepted human rights
and environmental principles in other treaties and conventions.
Michigan lawyer Jim Olson, who has been
deeply involved in the fight against Nestlé, says the point must be “repeated
and repeated” that privatization of water is simply incompatible with the
nature of water as a commons and, therefore, with fundamental human rights.
“Water is always moving unless there is human intervention. Intervention is the
right to use, not own and privatize to the exclusion of others who enjoy equal
access to use water. It is important to distinguish between sovereign ownership
and control of water, enjoyed by states or nations through which water flows or
moves, and private ownership. Sovereign state ownership is not the same and has
to do with control and use of water for the public welfare, health and safety,
not for private profit.” However, says Olson, if the state sides with the World
Bank and negotiates private rights to its water with corporations, that state
has violated the rights of its citizens who would have redress under the
principle of human rights if the covenant is well crafted.
A human
rights convention or covenant imposes three obligations on states: the
Obligation to Respect, whereby the state must refrain from any action or policy
that interferes with the enjoyment of the human right; the Obligation to
Protect, whereby the state is obliged to prevent third parties from interfering
with the enjoyment of the human right; and the Obligation to Fulfill, whereby
the state is required to adopt any additional measures directed toward the
realization of that right. The Obligation to Protect would oblige governments
to adopt measures restraining corporations from denying equal access to water
(in itself an incentive for water companies to leave) as well as polluting
water sources or unsustainably extracting water resources.
At a
practical level, a right-to-water covenant would give citizens a tool to hold
their governments accountable in their domestic courts and the “court” of
public opinion, and for seeking international redress. The World Conservation
Union says, “Human rights are formulated in terms of individuals, not in terms
of rights and obligations of states vis-à-vis other states as international law
provisions generally do. Thus by making water a human right, it could not be
taken away from the people. Through a rights-based approach, victims of water
pollution and people deprived of necessary water for meeting their basic needs
are provided with access to remedies. In contrast to other systems of
international law, the human rights system affords access to individuals and
NGOs.”
The union
also states that a right-to-water covenant would make both state obligations
and violations more visible to citizens. Within a year of ratification, states
would be expected to put in place a plan of action, with targets, policies,
indicators, and time frames to achieve the realization of this right. As well,
states would have to amend domestic law to comply with the new rights. In some
cases, this will include constitutional amendments. Some form of monitoring of
the new rights would also be established and the needs of marginalized groups
such as women and indigenous peoples would be particularly addressed.
A covenant
would also include specific principles to ensure civil society involvement to
convert the UN convention into national law and national action plans. This
would give citizens an additional constitutional tool in their fight for water.
As stated in a 2003 manifesto on the right to water by Friends of the Earth
Paraguay, “An inseparable part of the right is control and sovereignty of local
communities over their natural heritage and therefore over the management of
their sources of water and over the use of the territories producing this
water, the watersheds and aquifer recharge areas.” A right-to-water covenant
would also set principles and priorities for water use in a world destroying
its water heritage. The covenant we envisage would include language to protect
water rights for the earth and other species and would address the urgent need
for reclamation of polluted waters and an end to practices destructive of the
world’s water sources. As Friends of the Earth Paraguay put it, “The very
mention of this supposed conflict, water for human use versus water for nature,
reflects a lack of consciousness of the essential fact that the very existence
of water depends on the sustainable management and conservation of ecosystems.”
Progress at
the United Nations
Water was
not included in the 1947 United Nations Universal Declaration of Human Rights
because at that time water was not perceived to have a human rights dimension.
The fact that water is not now an enforceable human right has allowed decision
making over water policy to shift from the UN and governments toward
institutions and organizations that favor the private water companies and the
commodification of water such as the World Bank, the World Water Council, and
the World Trade Organization. However, for more than a decade, calls have been
made at various levels of the United Nations for a right-to-water convention.
Civil society groups argued that, because the operations of the water companies
had gone global and were being backed by global financial institutions,
nation-state instruments to deal with water rights were no longer sufficient to
protect citizens. International laws were needed, we argued, to control the
global reach of the water barons. We also noted that at the 1990 Rio Earth Summit,
the key areas of water, climate change, biodiversity, and desertification were
all targeted for action. Since then, all but water have resulted in a UN
convention.
This
lobbying started to pay off and the right to water was recognized in a number
of important international UN resolutions and declarations. These include the
2000 General Assembly Resolution on the Right to Development; the 2004
Committee on Human Rights resolution on toxic wastes; and the May 2005
statement by the 116-member Non-Aligned Movement on the right to water for all.
Most important is General Comment Number 15, adopted in 2002 by the UN
Committee on Economic, Social and Cultural Rights, which recognized that the
right to water is a prerequisite for realizing all other human rights and
“indispensable for leading a life in dignity.” (A General Comment is an
authoritative interpretation of a human rights treaty or convention by an
independent committee of experts that has a mandate to provide states with an
interpretation of the treaty or convention. In this case, the interpretation
applies to the International Covenant on Economic, Social and Cultural Rights.)
General Comment Number 15 is therefore an authoritative interpretation that
water is a right and an important milestone on the road to a full-binding UN
convention.
But as John
Scanlon, Angela Cassar, and Noemi Nemes of the World Conservation Union point
out in their 2004 legal briefing paper, Water as a Human Right?, General
Comment Number 15 is an interpretation, not a binding treaty or convention. To
clearly bind the right to water in international law, a binding covenant is
needed. So the pressure for a full covenant intensified. In early 2004, Danuta
Sacher of Germany’s
Bread for the World and Ashfaq Khalfan of the Right to Water program at the UN
Center on Housing Rights and Evictions called a summit and a new international
network called Friends of the Right to Water was born. The network set out to
mobilize other water justice groups and national governments to join the campaign
to strengthen the rights established in General Comment Number 15 and put in
place the mechanisms to ensure implementation of the right to water through a
covenant.
In November
2006, responding to a call from several countries, the newly formed UN Human
Rights Council requested the Office of the High Commissioner for Human Rights
to conduct a detailed study on the scope and content of the relevant human
rights obligations related to access to water under international human rights
instruments, and to include recommendations for future action. While the
request does not specifically refer to a covenant, many see this process as
having the potential to lead to one. In April 2007, Anil Naidoo of the Council
of Canadians’ Blue Planet Project, another founding member of Friends of the
Right to Water, organized to present a letter of endorsement calling for a
right-to-water covenant to UN High Commissioner for Human Rights Louise Arbour,
signed by 176 groups from all over the world.
It has been
essential to gain the support of governments in the Global South, many of whom
fear that their citizens could use a covenant against them if they are unable
to immediately fulfill their new obligation. Proponents of a covenant emphasize
that the application of a new human rights obligation is understood to be
progressive. States without the power to implement the full right are not held
accountable for not immediately delivering. What is required is the need to
rapidly take minimal steps for implementation that will increase as capacity
increases. But some governments are using their incapacity as an excuse to
cover real priorities, such as funding the military rather than public
services. A rights-based approach to development distinguishes between
inability and unwillingness. As agreed at the 1993 UN World Conference on Human
Rights, “While development facilitates the enjoyment of all human rights, the
lack of development may not be invoked to justify the abridgement of
internationally recognized human rights.” A government that fails to ratify a
right-to-water covenant should not try to hide behind capacity arguments.
Nor should
relatively water-rich governments such as Canada
hide behind a false fear (which Canada
is doing) that they will be forced to share the actual water supplies within
their territories. A human rights treaty is between a nation-state and its
citizens. Recognition of the right to water in no way affects a country’s
sovereign right to manage its own water resources. What will be expected of First World governments and their development agencies is
adequate aid to help developing countries meet their goals and ensure that
their aid, and that of the World Bank, is directed toward not-for-profit public
water services.
Dueling
Visions
While the
global water justice movement is excited and encouraged by these developments,
there is a growing concern that this process could be hijacked by the water
corporations, some northern countries, and the World Bank, and used to create a
convention that would enshrine the inclusion of private sector players. There
is now a widespread understanding that the right to water is an idea whose time
has come and some who opposed it until very recently have decided to drop their
opposition and help shape both the process and the end product in their image.
The irony here is that this new scenario may just have arisen out of the very
success of the global water justice movement’s hard work. Until recently, the
global institutions and the big water companies adamantly opposed a
right-to-water convention. So did many European countries such as France, England,
and Germany,
home to the big water companies.
At the
World Water Forums in The Hague and Kyoto, World Water
Council members and governments refused civil society calls for a
right-to-water convention and said that water is a human need, not a human
right. These are not semantics: you cannot trade or sell a human right or deny
it to someone on the basis of inability to pay. At the Fourth World Water Forum
in Mexico City,
the ministerial declaration once again did not include the right to water. But
the World Water Council did release a new report called The Right to Water:
From Concept to Implementation, a bland restatement of many UN documents with
almost no mention of the private sector (except to say that the right to water
can be implemented in a “variety of ways”) and with no reference to the
public-private debate raging around it. While the report falls far short of
recommending a convention on the right to water, the first words of the
foreword (written by Loïc Fauchon, president of the World Water Council and
senior executive with Suez) capture the essence of the situation in which these
corporations and the World Bank now find themselves: “The right to water is an element
that is indissociable from human dignity. Who, today, would dare say
otherwise?” Who indeed?
The World
Water Council is working with Green Cross International, an environmental
education organization headed up by Mikhail Gorbachev, which has launched its
own high-profile campaign for a UN convention on the right to water, and it is
just the sort of convention that Loïc Fauchon could live with. Although the
Green Cross draft convention admits that there is a problem with “excessive
profits and speculative purposes” in the private exploitation of water, it
nevertheless places the commercial and human right to water on an equal
footing, sets the stage for private financing for water services, allows for
the private management of water utilities, and says that water systems should
follow market rules. In a legal analysis of the Green Cross draft convention,
Steven Shrybman, a Canadian trade expert and legal counsel to Canada’s Blue
Planet Project, says it is “so seriously flawed as to represent a retreat from
current international legal protection for the human right to water.” Yet
Gorbachev defended his pro-corporate proposal in an interview with the
Financial Times when he said that corporations are the “only institutions” with
the intellectual and financial potential to solve the world’s water problems
and that he is “prepared to work with them.”
The global
water justice movement would never endorse a convention or covenant of this
kind. In submissions to the high commissioner, hundreds of groups have urged
the United Nations to take a clear stand in favor of public ownership of water.
For them, a covenant must explicitly describe water not only as a human right
but also as a public trust. As well, a UN covenant on the right to water will
have to address the two great shortcomings of existing human rights law if it
is to be accepted by civil society. Those shortcomings are their failure to
establish meaningful enforcement mechanisms and the failure to bind
international bodies.
In his
submission to Louise Arbour, lawyer Steve Shrybman said that the most
significant development in international law has not been taking place under
the auspices of the United Nations, but rather, under the World Trade
Organization, and the thousands of bilateral investment treaties between
governments that have codified corporate rights into international law. “Under
these rules, water is regarded as a good, an investment and service, and as
such, it is subject to binding disciplines that severely constrain the capacity
of governments to establish or maintain policies, laws and practices needed to
protect human rights, the environment or other non-commercial societal goals
that may impede the private rights entrenched by these trade and investment
agreements.”
Moreover,
states Shrybman, these agreements have equipped corporations with powerful new
tools in asserting proprietary rights over water with which the state cannot
interfere. “The codification of such private rights creates an obvious and
serious impediment to the realization of the human right to water.” Private
tribunals operating under these treaties are now engaged in arbitrating
conflicts between human rights norms and those of investment and trade law—a
role they are ill-suited to serve. He goes on to challenge the high
commissioner to recognize the need to deal with this reality and warns that
unless UN bodies are able to reassert their role as the fundamental arbiter of
human rights, they risk becoming bystanders as private tribunals operating entirely
outside the UN framework resolve key questions of human rights law. To be
effective, the covenant must assert the primacy of the human right to water
where there is a conflict with private and commercial interests. As well, this
instrument must apply to other institutions beside states, most importantly,
transnational corporations, the WTO, and the World Bank.
Grassroots
Take the Lead
Clearly,
the stage has been set for another form of contest. Having been successful in
forcing the United Nations to deal with the right to water, the global water
justice movement must now work hard to ensure it is the right kind of
instrument. There are many good signs. While several important countries remain
opposed to the right to water, most notably the United
States, Canada,
Australia, and China, many
more have come on board in recent years. The European Parliament adopted a
resolution acknowledging the right to water in March 2006, and in November
2006, as a response to the 2006 UN Human Development Report on the world’s
water crisis, Great Britain
reversed its opposition and recognized the right to water. As Ashfaq Khalfan of
the Centre on Housing Rights and Evictions explains, most countries in one form
or another have supported the notion of the right to water in various
resolutions at the United Nations and can be counted on to do so again. The
challenge is to get support for a covenant that will truly be able to deliver
on the promise. This is where civil society groups can be so effective. In many
countries, water justice groups are hard at work to convince their governments
to support the right kind of tool.
But they
are not waiting for the United Nations. Many are also working hard within their
countries to assert the right of water for all through domestic legislative
changes. On October 31, 2004, the citizens of Uruguay became the first in the
world to vote for the right to water. Led by Adriana Marquisio and Maria Selva
Ortiz of the National Commission for the Defence of Water and Life and Alberto
Villarreal of Friends of the Earth Uruguay, the groups first had to obtain
almost three hundred thousand signatures on a plebiscite (which they delivered
to Parliament as a “human river”), in order to get a referendum placed on the
ballot of the national election calling for a constitutional amendment on the
right to water. They won the vote by an almost two-thirds majority, an
extraordinary feat considering the fear-mongering that opponents mounted. The
language of the amendment is very important. Not only is water now a
fundamental human right in Uruguay,
but also social considerations must now take precedence over economic
considerations when the government makes water policy. As well, the
constitution now reflects that “the public service of water supply for human
consumption will be served exclusively and directly by state legal persons,”
that is to say, not by corporations.
Several
other countries have also passed right-to-water legislation. When apartheid was
defeated in South Africa,
Nelson Mandela created a new constitution that defined water as a human right.
However, the amendment was silent on the issue of delivery and soon after, the
World Bank convinced the new government to privatize many of its water
services. Several other developing countries such as Ecuador,
Ethiopia, and Kenya also have
references in their constitutions that describe water as a human right, but
they, too, do not specify the need for public delivery. The Belgian Parliament
passed a resolution in April 2005 seeking a constitutional amendment to
recognize water as a human right, and in September 2006, the French Senate
adopted an amendment to its water bill that says that each person has the right
to access clean water. But neither country makes reference to delivery. The
only other country besides Uruguay
to specify in its constitution that water must be publicly delivered is the Netherlands,
which passed a law in 2003 restricting the delivery of drinking water to
utilities that are entirely public. But the Netherlands did not affirm the
right to water in this amendment. Only the Uruguayan constitutional amendment
guarantees both the right to water and the need to deliver it publicly and is
therefore, a model for other countries. Suez
was forced to leave the country as a direct result of this amendment.
Other
exciting initiatives are underway. In August 2006, the Indian Supreme Court
ruled that protection of natural lakes and ponds is akin to honoring the right
to life—the most fundamental right of all according to the court. Activists in Nepal are going
before their Supreme Court arguing that the right to health guaranteed in the
country’s constitution must include the right to water. The Coalition in
Defense of Public Water in Ecuador
is celebrating its victory over the privatization of its water by demanding
that the government take the next step and amend the constitution to recognize
the right to water. The Coalition Against Water Privatization in South Africa is challenging the practice of
water metering before the Johannesburg High Court on the basis that it violates
the human rights of Soweto’s
citizens. President Evo Morales of Bolivia has called for a “South
American convention for human rights and access for all living beings to water”
that would reject the market model imposed in trade agreements. At least a
dozen countries have reacted positively to this call. Civil society groups are
hard at work in many other countries to introduce constitutional amendments
similar to that of Uruguay.
Ecofondo, a network of sixty groups in Colombia, has launched a plebiscite
toward a constitutional amendment similar to the Uruguayan amendment. They need
at least one and a half million signatures and face several court cases and a
dangerous and hostile opposition. Dozens of groups in Mexico have
joined COMDA, the Coalition of Mexican Organizations for the Right to Water, in
a national campaign for a Uruguayan-type constitutional guarantee to the right
to water.
A large
network of human rights, development, faith-based, labor, and environmental groups
in Canada
has formed Canadian Friends of the Right to Water, led by the Blue Planet
Project, to get the Canadian government to change its opposition to a UN
covenant on the right to water. A network in the United States led by Food and Water
Watch is calling for both a national water trust to ensure safekeeping of the
nation’s water assets and a change of government policy on the right to water.
Riccardo Petrella has led a movement in Italy to recognize the right to
water, which has great support among politicians at every level. Momentum is
growing everywhere for a right whose time has come.
This, then,
is the task: nothing less than reclaiming water as a commons for the earth and
all people that must be wisely and sustainably shared and managed if we are to
survive. This will not happen unless we are prepared to reject the basic tenets
of market-based globalization. The current imperatives of competition,
unlimited growth, and private ownership when it comes to water must be replaced
by new imperatives—those of cooperation, sustainability, and public
stewardship. As Bolivia’s
Evo Morales explained in his October 2006 proposal to the heads of states of South America, “Our goal needs to be to forge a real
integration to ‘live well.’ We say ‘live well,’ because we do not aspire to
live better than others. We do not believe in the line of progress and
unlimited development at the cost of others and nature. ‘Live well’ is to think
not only in terms of income per capita but cultural identity, community, harmony
between ourselves and with mother earth.” There are lessons to be learned from
water, nature’s gift to humanity, which can teach us how to live in harmony
with the earth and in peace with one another. In Africa,
they say, “We don’t go to water ponds merely to capture water, but because
friends and dreams are there to meet us.”
Blue Gold: World Water Wars –
A review of an important documentary film
We can forgive the corporations for their
immaturity, for their endless need for power and money, but above all, we, as
citizens of the world must speak out and speak up. Small entities as we are, together we do have
a voice. We cannot be passive and allow
those who are insecure and greedy to destroy our planet. We must respect the feminine within and
without, and bring our energies back into balance. While I do believe that our souls are
immortal and that our lives extend beyond the limits of our physical bodies,
and while I do believe the Earth will survive us if we destroy our chances of
continuing to inhabit this beautiful habitat, I still hope for human growth and
harmonious cohabitation on Earth for all peoples.
