PRIVATIZATION AND THE RIGHT TO WATER: A VIEW FROM THE SOUTH
Rodrigo GUTIÉRREZ RIVAS^*

SUMMARY
I. Why national and international consolidation of the human right to water is necessary. II. Human right to water. III. What are some of the demands of the movements and organizations.

I. WHY NATIONAL AND INTERNATIONAL CONSOLIDATION OF THE HUMAN RIGHT TO WATER IS NECESSARY

During the late 20th and early years of the 21st century, a notable upsurge has been observed in conferences, forums, declarations, resolutions, and other national and international events dedicated to the issue of water. Many of these have called attention to the critical situation faced today by communities and ecosystems in their relation with this element, which is indispensable for life. Those who do not have sufficient information on the causes and consequences of the current crisis, might say that it is not a new problem, but rather that water conflicts have always existed and will continue. To some degree this is true — disputes related to access to water, its quality, and ownership of the same, are indeed very old. However, what is new is the scale of the problem,¹ and the economic and technological context in which it is occurring.

In reference to scale, suffice it to say that today more than 1.1 billion people in the world lack basic drinking water supply. More than 2.4 billion persons suffer each year from illnesses borne by contaminated water, and it is calculated that close to 10,000 people (the majority of whom are children) die every day in the world, poisoned by the rivers and other water basins from which they traditionally obtain their water.² These two faces of social and environmental unsustainability clearly generate the worst consequences in the poorest regions of the planet.

Regarding the context in which this is taking place, it is important to emphasize that these deaths and illnesses as well as the expanding degradation of aquatic ecosystems could currently be avoided. Today more than ever, the world has sufficient economic and technological resources to counter this human and environmental deterioration. However, far from diminishing, problems of scarcity, pollution, discrimination, or overexploitation of water continue to increase, alongside social and political conflict related to this issue.

This is due to large degree to the fact that, beginning in the decade of the 1980s, the posture which defends the market as the most adequate route through which to resolve water problems, has been able to place itself in the dominant position.³ Due to the enormous pressures applied by large corporations on governments —and thanks to the support they have received from the International Financial Institutions— this position has been able to firmly promote the water business in the world and advance both in its commercialization (bottling) and privatization of the distribution networks.

During these past years, many Latin American States —including Mexico— have received strong pressure from the World Bank to open their water markets. One of the results of this pressure has been modification of laws in the matter —even Constitutions— to facilitate private capital investment in both water extraction and water distribution processes.

After thirty years of promotion of these free market strategies, the results have been very favorable to the large investors in the field, but not so much for the general population, and much less for those in situations of poverty or discrimination.

1. Bottled water

The bottled water business is only one example of the above. Bottling and selling water has today transformed into a very profitable business, calculated at 22 billion dollars on the world scale. This market is in rapid growth, with 7% more bottled water commercialized each year compared to the previous year.⁴

This business is born at the moment in which the population loses trust in the quality of public water. This occurs most easily in institutional contexts in which governmental authorities lack adequate capacity to supervise industrial processes, which are those which most contribute to water contamination.⁵ As the population gains awareness of the risk supposed by drinking water from the public distribution network or other contaminated sources, it finds itself obligated to purchase bottled water.

In Mexico, this business did not exist until fifteen years ago. Today it is the country with the highest consumption of bottled water in Latin America, and at the world scale is outranked only by Italy. The Mexican bottled water market is calculated at 32 billion pesos, which is highly attractive to the large transnationals. While a large variety of brands exist, four foreign corporations exercise the greatest control in extraction, bottling, distribution and sale of water in Mexico: Danone, Nestlé, PepsiCo and Coca-Cola.⁶

The first result is a disproportionate increase of the price of water. For example, it costs about 2.5 pesos to fill a 1000 liter water tank in Mexico City with water from the public network. If we were to fill it with Nestlé Pure Life water, we would pay 2,500 pesos: 1000 times more for the same element. As usual, the common people are those who most suffer the increase, among other reasons, due to the fact that they are the ones who encounter more problems for access to public sources, and receive the poorest quality supply. This forces them to recur to the market, in which they have to spend a high percentage of their low wages on water.

For industry, the circle is perfect. First they pressure for indiscriminate opening of markets. Once that is achieved, the factories and maquilas establish themselves in the developing countries to take advantage of cheap labor and low standards of oversight of industrial processes. One of the results of this scarce surveillance is increased contaminants released into water sources, obligating the population to purchase it. From whom? From other companies who get rich by its extraction and distribution. Perfect.

It is also important to add that the bottling companies, through the (not always transparent) concessions authorized to them by the State, have steadily appropriated many previously community-managed wells, which are now in private hands and at risk of overexploitation. And as if that were not enough, many studies have shown that the bottled water, which is not submitted to strict quality controls, is not always free of contaminants. Paying one thousand times more for water is therefore no guarantee of safety.

2. Distribution networks

Another business that is benefiting large companies and affecting people is that of water distribution through underground networks. This market opportunity has been opening thanks to the fact that the World Bank has conditioned loans and investments in water distribution matters in exchange for acceptance by the countries requesting such financial support to promote laws and policies oriented toward privatization of public water and sanitation services.

Negative examples of this abound in Latin America: Bolivia, Argentina, Uruguay, Mexico. Water distribution models with private participation have been experimented in all of these countries. The consequences have varied widely, but in the majority of cases, in one way or another, they have ended up affecting the population. Ramifications have varied from the Cochabamba case, which produced deaths, imprisonments, and immense losses, to that of Aguascalientes, where consequences to date have included tariff hikes, poor service quality, abuses on the part of the companies, unjustified charges, and unfulfilled investment promises.⁷

Bottling and distribution, as outlined above, are only two concrete examples isolated here to explain how the project of market opening and free competition in the water field is affecting people in the countries of peripheral capitalism. Nevertheless, the relations produced between the processes of contamination, overexploitation, discrimination, and privatization are much more complex and are gravely affecting ecosystems and current and future generations.⁸

It must be taken into account that in our countries, the life and health of communities depends directly on the good state of aquatic ecosystems. The sustainability of said ecosystems is more indispensable than in countries of the north. Killing a river with pollution in the “developed” countries is serious and sad, but does not necessarily translate into a life or death situation. They have the resources and technology to purify the water which will then run clean through the distribution networks. In our countries, poisoning a river means poisoning the people who are near it. For that reason —as Arrojo explains— sustainability is a challenge for survival in the short term.⁹

The irresponsibility and corruption of companies and governments, the lack of real democracy, and the imposition of a prepotent development model based on the free market and economic growth —which is believed can dominate nature and should appropriate it— is an unviable scheme which is costing millions of lives and placing at risk the immediate future of our ecosystems.

II. HUMAN RIGHT TO WATER

For these reasons, strong opposition has surged in the southern hemisphere of the planet against private-sector participation in the water sector. Latin America has led this social reaction in recent years, manifested every day in marches, demands, mobilizations, highway blockades, and other forms of resistance and protest.

Many of these social expressions are the political foundation behind the demand to officially convert water into a fundamental human right. The alliance of distinct civil society sectors (movements, unions, NGOs, academia, progressive lawyers) is generating significant pressure so that water cease to be viewed as a merchandise and convert into a formal human right.

As a positive response to this demand, in recent years certain national and international human rights institutions and even some parliamentary or jurisdictional entities have become sensitive to the demand and have begun to take steps in this direction.¹⁰

At the international level, the Mar del Plata Declaration of 1977 was the first time explicit reference was made to water as indispensable element to satisfy basic needs. Since then, said right has been included in conventions¹¹ and declarations,¹² and numerous conferences, rapporteur reports, and expert committee statements have addressed the water theme as a central and urgent issue.

In this same sense, the recently created UN Human Rights Council approved a decision (2/104) at its second period of sessions (27 November 2006) related to Human Rights and access to water.¹³ Through said decision, the Council requested the Office of the High Commissioner on Human Rights to carry out a detailed study on the reach and content of pertinent obligations imposed by international human rights instruments in human rights matters related to equitable access to clean water and sanitation. The High Commissioner was requested to present his conclusions and recommendations to the Council at its sixth period of sessions.

All of the above documents recognize water as an indispensable element in order to secure an adequate standard of living, and therefore subject to protection as a human right. The questions therefore are: What does it mean to have this right? What are its reaches? What obligations are acquired by States upon subscribing it? To date, the legal document which has most clearly specified the essential content of the right, and State obligations derived from the same, is General Comment No. 15 emitted by the Committee on Economic, Social and Cultural Rights¹⁴ which is the body responsible to oversee application of the International Covenant on Economic, Social and Cultural Rights.¹⁵

1. Content of the right

According to General Comment 15, “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic use”. The Committee considers that this right “clearly falls within the category of guarantees essential for securing an adequate standard of living”, because it is a necessary condition for survival. And while the General Comment points out that priority should be placed in water allocation to the right to use it for personal and domestic purposes, States should also recognize it as a good which is indispensable for exercise of other rights such as adequate food, environmental hygiene, health, the right to earn a living, and the right to enjoy determined cultural practices.

For that purpose, this specialized body has also pointed out that “States Parties should ensure that there is adequate access to water for subsistence agriculture and for securing the livelihoods of indigenous peoples”.

For the Committee, the right to water entails both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as arbitrary cut-offs in supply or contamination of water resources. The Comment also specifies that the elements of the right to water should be adequate for human dignity, life, and health. It specifically states that “adequacy of water should not be interpreted narrowly, by mere reference to volumetric quantities and technologies. Water should be treated as a social and cultural good, and not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations”.

Due to the fact that what is adequate for exercise of the right may vary in function of different conditions existing in each region, five factors are identified for application under all circumstances: a) availability; b) quality; c) physical accessibility; d) affordability or economic accessibility, and e) non-discrimination.

2. Obligations entered into by States Parties

Accompanying said right, States acquire distinct types of obligations: a) general legal obligations, and b) specific legal obligations.

a) Article 2 of the International Covenant on Economic, Social and Cultural Rights is especially relevant due to the fact that in it is described the nature of the general legal obligations contracted by States Parties. The Committee has interpreted¹⁶ that, even though paragraph 1 of said article establishes that fulfillment of the obligations is gradual and progressive, States Parties acquire some obligations which are of immediate effect. Of these, two are especially important: 1) to guarantee that rights will be recognized without discrimination, and to 2) take steps toward their full realization.

In the case of the right to water, the obligation to take steps means that States Parties have a constant and continuing duty to move as expeditiously and effectively as possible toward its full realization. States must outline a direction and begin to make strides toward the established goal within a reasonably brief period following entry into force of the right. Among the measures States should adopt, with no justification for their omission, are those of: a) adapting the legal framework; b) facilitating information, and c) providing effective legal resources for defense of persons in the matter.

b) The specific legal obligations are to 1) respect, 2) protect, and 3) fulfill, with the last of these disaggregated into the obligations to facilitate, promote, and provide.

III. WHAT ARE SOME OF THE DEMANDS OF THE MOVEMENTS AND ORGANIZATIONS

Advances in construction of the right to water at the international level no doubt imply progress in the struggle against the deterioration of the lives of persons and ecosystems. Nevertheless, said right also has limits, gaps, and imprecisions. For that reason, the social movements and organizations continue in the struggle to broaden the reaches of this right.

Firstly, said movements struggle for the right to water within the framework of an integral and ecosystemic vision, and opposed to its commercialization within all spheres: domestic, agricultural, and industrial.¹⁷

This vision derives from the first basic idea that water can not in any case or circumstance be considered an item of merchandise. Water is the patrimony of communities, peoples, and humanity, and is the constitutive principle of life on our planet. This vision thereby rejects the developmentist, neoliberal, and consumerist model which promotes overexploitation and death of nature through construction of mega-projects, dams, ports, and mining and water bottling.

In this sense the movements have expressed the need to exclude water from the World Trade Organization and all other international agreements on free trade and investment, be they bilateral or multilateral, and advance in demands on governments and big business to repair the damages they have caused to populations through contamination and lack of access to water.

The movements reject any finance from the IFIs which is conditioned to liberalization and privatization of water services. They also reject all national and regional legislation that opens doors to water privatization and commercialization processes.

The movements and organizations have therefore expressed their firm opposition to all the World Water Forums, which are the exclusive sphere of large transnational corporations, IFIs (World Bank, IDB, BEI, etc.) and the world’s dominant State powers.

In place of the developmentist model based on the free market, the movements struggle to recover and promote public, social, community, participative, and integral management of water.

This supposes sustainable management of ecosystems and preservation of the water cycle through territorial ordering and conservation of natural environments. The hydrological basins are considered integral basic units of public management, and factor of community identity and union, through which citizen and peoples’ participation should be made effective.

The movements demand that all human beings enjoy access and the right to water of good quality and in sufficient quantity for hygiene and procurement of food. In those places with public water supply services, sufficient quantity should be provided free of cost, regardless of cultural, religious, social, geographic, economic, or gender conditions. This implies that no company, government, or international institution may interrupt the service due to lack of payment for domestic consumption.

Achievement of these proposals will require establishment of quality public management bodies, operating based on democratic principles. Experiences should be exchanged and technical know-how, training, and finance schemes and proposals should be shared, to consolidate a public, social, community, and participative model.

Alongside the above, community education and organization on responsible and sustainable water use and consumption is an additional and necessary complementary element.

Notes
* Researcher at the Legal Research Institute of the UNAM.
1 Langford, Malcom and Khalfan, Ashfad, “Introducción al agua como derecho humano”, in Esch, Sophie (ed.), La gota de la vida: hacia una gestión sustentable y democrática del agua, Mexico, Heinrich Böll, 2006, p. 30.
2 Arrojo, Pedro, El reto ético de la nueva cultura del agua, Barcelona, Paidós, 2006, p. 11.
3 It is important to recall that various conceptual approaches exist to the world’s current complex water issue. The distinct approaches propose different general solution schemes, which sometimes are complementary and in other cases are in frank opposition. There are some who think that the State must monopolize water management and conservation, in order to overcome the most serious backward conditions. Some call for promotion of community management; others believe that the market offers the best responses,1 and there are those who suggest combinations among the different proposals. Langford, Malcom and Khalfan, Ashfad, op. cit., note 1, p. 31.
4 García, Edgar, “El negocio del agua embotellada en México”, First Popular Workshop in Defense of Water, Mexico, CASIFOP, 2005, p. 89.
5 Mining, sugar, oil, electricity, paper, and other companies together, even though they consume only 10% of total available water, produce three times more contamination, in terms of biochemical demand for oxygen, than that produced by 100 million inhabitants. Vid., Carabias, Julia and Landa, Rosalva, Agua, medio ambiente y sociedad. Hacia la gestión integral de los recursos hídricos en México, México, Colegio de México, UNAM, 2005, p. 32.
6 Idem.
7 Vid. Torregrosa, María et al., “Barriers to and Conditions for the Involvement of Private Capital and Enterprise in Water Supply and Sanitation in Latin America and Africa: Seeking Economic, Social and Environment Sustainability”, an interdisciplinary research project, Aguascalientes-Mexico, Case Study, Prinwass, 2003.
8 In the Popular Workshop on Water held in Mexico City in March 2006, more than 60 organizations from Mexico and Latin America presented some of the most recurring problems being suffered by people: Imposition of infrastructure projects: Tourism developments, port projects, highways, hydroelectric dams, dumpsites, hydraulic channels and systems, gasoline stations, etc. that imply or will imply grave environmental and social damages. Over-exploitation of water basins: Depletion of water basins due to over-exploitation, creating secondary problems such as the need to extract water from greater depths (with corresponding energy expenditures), sinkholes in urban areas, etc. Privatization and service rate hikes: Water system concessions to private companies, which have almost always resulted in rate hikes and deterioration or even suspension of water supply services. Privatization of the resource through its commercialization in bottles, etc. Pollution: In rivers, port regions, and rural areas, product of industrial wastes or poor management of waste waters. Public water supplies which fail to meet minimum health norms. Scarcity and unequal distribution: In areas where water supplies are scarce, large businesses consume enormous amounts of water (while they never suffer supply shortages). Areas which produce large amounts of water lack their own supply while the water is piped away to high demand areas. Large tourism, housing, or recreational (golf, water park, etc.) developments using large quantities of water, while entire surrounding rural or urban communities suffer water scarcity. Legal obstacles, pressure from governmental entities and repression. Pressure from the National Water Commission requiring communities to register their wells, and repression toward those who defend the rights of the communities and autonomous populations. Deceptive use of the law against community interests. Legal support to introduce private capital in water management via various schemes (covert privatization). Vid. Popular Workshop “Defense and Community Management of Water in the Countryside and the City”.
9 Arrojo, Pedro, op. cit., note 2, p. 18.
10 It must also be mentioned that negative and violent responses also exist on the part of other institutions, which criminalize the movements, and pursue, repress and imprison its leaders.
11 Convention on the Elimination of All Forms of Discrimination Against Women; Convention on the Rights of Children; International Convention on the Elimination of All Forms of Racial Discrimination.
12 Rio Declaration on the Environment and Development; Dublin Declaration on Water and Sustainable Development; United Nations Millennium Declaration; Johannesburg Declaration on Sustainable Development.
13 The decision proposal, presented by Germany and Spain, received the support of 34 countries, including Switzerland, who were later joined by 11 more.
14 Adopted and subscribed by the Committee on Economic, Social and Cultural Rights at its 29th period of sessions in 2002.
15 Adopted and open to signature, ratification and adherence by the UN General Assembly: 16 December 1966. Entered into force on 21 January 1976.
16 General Comment No. 3, point 1.
17 The proposals outlined here are taken from the Memoria del Foro Internacional en Defensa del Agua. Said Forum was held in Mexico on 17-19 March 2006 as counterproposal to the IV World Forum on Water held in said country. Vid. www.comda.org.mx.