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Blue Covenant: The Alternative Water Future

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).

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.”