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The legal road to public water

by Jackie Dugard and Katherine Drage – June 21, 2012

After a wave of water privatizations in the 1990s, activists started to push back with using rights and litigations to reverse private deals. To understand what’s been going on we’ve looked at some of the most interesting legal struggles from around the world, six of which have captured the international water movement’s imagination. Citizen-backed referendum campaigns and civil society-led litigation appeared to be favourite tactics in the legal arsenal to (re)claim water. In particular, we looked at:

  • Uruguay, the first country to successfully hold a referendum to recognize a constitutional right to water and entrench the principle of public ownership and management, thanks to CNDAV's mobilizing efforts (2004)
  • Colombia, where civil society efforts – mostly Ecofondo's – to push a referendum to write the right to water and public service management into the constitution were frustrated by Congress (2010)
  • Berlin (Germany), where residents voted to pass a draft bill pushed by Berliner Wassertisch to force the municipal administration to disclose secret agreements on the partial privatization of the city’s water services (2011)
  • Italy, whose citizens rejected the proposed privatization of the country’s water supply in a referendum called by Forum Italiano dei Movimenti per l’Acqua (2011)
  • Grenoble (France), which witnessed a long judicial battle to have the city’s privatized water deal declared invalid, a success for ADES and Eau Secours notably (2000)
  • Indonesia, where a judicial challenge of the new Water Resources Law mounted by a coalition of NGOs established various procedural safeguards for the provision of water (2005)

We wanted to understand how activists had harnessed the legal mechanisms available to them, which required gaining a working knowledge of the legal and political infrastructure within which campaigners sought to manoeuvre, and insight into the campaigns themselves, how they came about and how the strategies evolved. To write Shields and Swords: Legal Tools for Public Water, we needed the personal experiences of those on the front line and the wider policy comprehension of those with intricate knowledge of the law.

Interviewing water activists

Speaking to activists directly was invaluable, and gave the paper the sense of dynamism that we were looking for. The individuals we spoke to, often in the early hours of the morning due to time differences, were still pressing forward, some galvanized by their legal victory, some looking for new ways to overcome political or bureaucratic hurdles to win back or protect their access to public water.

In conversations with academics, activists, policy analysts and corporate watchdogs around the world, the same passionate belief in the human right to this most basic resource was overwhelming, inspirational and kept us going during the writing and editing process.

It proved a challenge to rely mainly on sources we could find in English, and we could have missed a few interesting facts, so feedback and comments are warmly welcomed!

While many of these campaigns are recent and some are ongoing, a comparative look at the cases taught us legal strategies can only be seen as part of a larger political struggle: mobilized civil society networks are key to the equation. And reversing private water provision is only the beginning of a longer battle to provide genuinely democratic forms of public water provision, rather than the end-goal.

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).