The Municipal Services Project research Shields and Swords: Legal Tools for Public Water finds that their success has been mixed, with some legal actions managing to get the right to water written into law or banning private water provision altogether, while others have met with partial success. Among others, it analyzes at length two case studies from Latin America where referenda have been at the center of campaigns for public water: Uruguay and Colombia.
A referendum is a direct vote in which an electorate is asked to accept or reject a specific proposal. The Uruguayan referendum of 2004 appears to be the first example of this strategy being used to outlaw water privatization. After 1993 private water concessions led to a rapid deterioration of water services, with reduced access and soaring tariffs, the Comisión Nacional en Defensa del Agua y de la Vida came together and launched a campaign that collected the 283,000 signatures required to force a popular vote. Uruguayans voted to introduce a constitutional amendment recognizing the right to water and entrenching the principle of public ownership and management. Foreign private water companies were effectively ousted – after significant complications and problematic government appeasement – but a public-private partnership was subsequently created to run the country’s water services, contravening the amendment. The campaign continues to fight commercialization and mobilize for greater public participation in water management.
Inspired by the Uruguayan struggle, Colombia’s anti-privatization movement has attempted to reverse water privatization in that country. In 2008, Ecofondo called for a referendum on a constitutional amendment to enshrine a right to water, a minimum amount of water per person, and public management of water services.
However, the initiative was undone by Congress in May 2010 when it dismissed the draft referendum bill despite massive popular support. Ecofondo has nevertheless raised public awareness of high water tariffs and continues to campaign against privatization. Citizens have kept up the pressure at the municipal level. In the port city of Buenaventura, for example, the Defensoría Regional del Pueblo has been denouncing the mediocre water service and has recently carried through a popular action in a local court. If granted, the court order would force the delivery of an improved service, although effective coordination among all stakeholders may prove difficult.
In short, referenda campaigns have proven to be an effective way to tap into widespread public opposition to reverse or challenge privatization and, as a counter-strategy, appear to be growing in popularity around the world. Where referenda have been less successful is in defining alternative models of public water services; this next step will be crucial to ensure that sustainable models fill in the vacuums left by private providers.
These cases demonstrate that privatization can be challenged on its own legal terms, exposing it to closer public scrutiny. But using or creating a new law is only the first step in what must be a longer political struggle to provide genuinely democratic forms of public water provision. As such, legal campaigns must also strive toward building frameworks for regulating, maintaining and monitoring progressive management of services after they become public. For that reason dedicated and committed activism is more critical to the success of campaigns than the legal tools themselves.
Finally, whether or not ‘rights’ frameworks are invoked, pro-public activists derive authority, legitimacy and solidarity in their legal campaigns from the international recognition of a right to water of July 28, 2010. From leftist perspectives there is much debate about whether this vision of law can ever be useful for radical social and economic change, many arguing it is ideologically biased toward the status quo and private interests; as such, legal tools are seen as potentially harmful to radical movements.
Notwithstanding, our research shows that the right to water can be viewed as an enabling framework that, although potentially friendly to privatization, can be used along with other laws to build, mobilize and legitimize campaigns opposed to privatization.
Two resounding victories in Berlin and Italy – two other cases explored in our study –are marking the right to water’s first anniversary at the UN. In Berlin, the city administration recently announced it was buying the shares of private company RWE in the water utility, raising its stake to 75.05% from 50.1%. In February 2011, Berlin residents had voted by a margin of 98.2% after a Berlin Water Table campaign to pass a draft bill to force the municipal administration to disclose secret agreements on the partial privatization of the city’s water services. Some months later, hopes for remunicipalization are coming true.
In Italy, after the Berlusconi government went ahead with its privatization agenda despite a citizen-led referendum that rejected by 96 per cent the proposed privatization of the country’s water supply in June 2011, the Italian Constitutional Court ruled this month to uphold the people’s will to keep water in public hands. The unrelenting efforts of the Forum Italiano dei Movimenti per l’Acqua have no doubt gone a long way to safeguarding what had been gained from hard mobilization work.
Let’s keep building on these foundations, everywhere.
Jackie Dugard is Executive Director of the Socio-Economic Rights Institute of South Africa (SERI) and visiting Senior Fellow, School of Law, University of the Witwatersrand.
Katherine Drage is a former Intern at SERI and is currently an articled clerk at Withers LLP (London).
Madeleine Bélanger Dumontier is Communications Manager for the Municipal Services Project (MSP), a global research initiative that explores alternatives to the privatization and commercialization of service provision in the electricity, health, water and sanitation sectors.