Water and Constitutional Reform: The Example of Uruguay
– By: Stavros Tasiopoulos –
PhD (c) in Public Law/International Law, Athens Law School
Photo by: Douglas Pfeiffer Cardoso
The upcoming constitutional reforms in Greece present a timely opportunity to establish the right to water as a human right, based on the example of Uruguay and the 2004 constitutional reforms that took place in that country.
On October 31, 2004 an overwhelming majority – 62.75% – of the citizens of Uruguay voted in a referendum to add a new constitutional provision stating that access to drinking water and sanitation are fundamental human rights. The provision further states that water is a matter of public interest and requires that water services be made public. As a result of the referendum, private water services were canceled immediately (1), and private companies that held existing concession contracts were compensated solely for costs incurred prior to the referendum. No compensation was given for the future economic losses of these companies (2).
The referendum was promoted by the National Commission in Defense of Water and Life (CNDAV) – a coalition of movements and organizations. The main goal of the CNDAV was to reduce the high cost of operation of private water companies and the environmental burden resulting from inadequate access to safe drinking water.
Based on the Uruguayan example, it is now time for Greece to move forward on an innovative path that can influence the evolution of the right to water across the European Union (EU). Indeed, the EU has already seen a significant re-municipalization of water services within its various member states.
The process of including the right to water in the Greek constitution should also involve extensive public participation through open governance tools and capacity building. Through a consultation process, a qualified legal team could then draft the new provision, in cooperation with the Parliamentary Committee for Constitutional Review.
The inclusion of a provision for the right to water in the constitution would not negate the importance of existing court decisions or aspects of the current legal framework. However, explicit constitutional mention would lend legitimacy and legal force to this right. A possible wording of the new provision could be the following:
Continuing access to safe drinking water is a human right and a foundation for human life. The State guarantees the provision of water and sanitation services to all citizens through public management agencies in order to meet their needs. Neither limited financial means nor any other factor shall be an obstacle to the provision of services.
This constitutional guarantee could also include the codification of the right to water as an individual right and the provision of water services as a state obligation. This was the direction taken by the Council of the State in its Plenary Decision 1903/2014, where it considered public entities to be the most appropriate entities to provide water services and to ensure citizens’ access to affordable water (3).
Furthermore, a constitutional right to water provided publicly by the state would not prohibit private operators from providing water services to citizens, nor would it restrict the market economy, in line with the position of the European Commission in the Communication of March 2014 on the proposal of the European Citizens’ Initiative for water: “The Commission will continue to fully comply with the Treaty rules requiring EU neutrality in relation to national decisions concerning the ownership of the water enterprises”.
Finally, constitutionalizing the right to water in Greece would be a key step towards the realization of Goal 6 of the Sustainable Development Goals (4).
Moshman, Rachael. “The Constitutional Right to Water in Uruguay.” Sustainable Development Law & Policy, Winter 2005, p.65Making water privatization illegal: New laws in Netherlands and Uruguay , Public Services International Research Unit (PSIRU) www.psiru.org , 31/11/2004, p. 2Consideration 22, Council of State, Plenary, 1906/2014Transforming Our World: The 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015, A/RES/70/1.