Water Security in Bolivia’s Constitutional Reform

Water Security in Bolivia’s Constitutional Reform Secure the Right to Food and Water

In the city of Cochabamba, in central Bolivia, the price of water had soared by over 200% under the management of a private consortium. A public uprising and mass mobilisation of Bolivia’s indigenous population, known as the ‘Cochabamba Water Wars’ of 2000, successfully brought an end to the increasing water tariffs, securing a landmark victory against the commodification and exploitation of Bolivia’s water resources.

Ultimately, this action paved the way for a great period of social, political and economic reform, and the voting of Evo Morales to power. A new Constituent Assembly was elected to draft a new constitution and a referendum was finally held on the 25 January 2009, where the new constitution was ratified with a 61% ‘yes’ vote. Within the new Constitution, water was formally recognised as a ‘basic human right’.

Bolivia is also known for its ‘Law for the Rights of Mother Earth’ from 2010 where one of the rights within is the “protection of water from contamination.” Recently however, concerns have been raised over fracking plans in Bolivia and whether such action would be compatible with Bolivian law. The question is under discussion at the International Tribunal for the Rights of Nature.

At a Glance
  • The new constitution of 2009 enacts many progressive reforms, and Bolivia has established a precedent by formally recognising water as a ‘basic human right’.
  • According to Article 124 of the Constitution, any citizen who violates the constitutional regime of natural resources is recognised as committing an act of treason against the country.
  • Recognition of water as a human right is a pivotal moment in the global fight for water justice, and continues to ensure that the Bolivian government bears the responsibility of upholding one of the most fundamental ingredients of life on earth for future generations.
  • The return of water to public control by municipalities has demonstrated that there are effective, transparent, and accountable alternatives to privatisation.


Policy Reference

Bolivia’s Constitution of 2009 [in English]

Part I: Fundamental Bases of the State: Rights, Duties and Guarantees

Title II: Fundamental Rights and Guarantees

Chapter II: Fundamental Rights

Article 16. Every person has the right to water and food.

Article 20, III. Access to water and sewer systems are human rights, neither are the object of concession or privatization, nor are subject to a regimen of licensing and registration, in accordance with the law.

Part IV: Economic Structure and Organization of the State

Title II: Environment, Natural Resources, Land and Territory

Chapter V: Water Resources

Article 373, I. Water constitutes a fundamental right for life, within the framework of the sovereignty of the people. The State shall promote the use and access to water on the basis of principles of solidarity, complementariness, reciprocity, equity, diversity and sustainability.

Article 374. The State shall protect and guarantee the priority use of water for life. It is the duty of the State to manage, regulate, protect and plan the adequate and sustainable use of water resources, with social participation, guaranteeing access to water for all the habitants. The law shall establish the conditions and limitations of all the uses.

Article 375, I.  It is the duty of the State to develop plans for the use, conservation, management and sustainable exploitation of the river basins. II. The State shall regulate the management and sustainable administration of the water resources and the basins for irrigation, food security and basic services, respecting the uses and customs of the communities.


Connected Policies

Bolivia’s Constitution of 2009 [in English]

Part I: Fundamental Bases of the State: Rights, Duties and Guarantees

Title II: Fundamental Rights and Guarantees

Chapter IV: Rights of the Nations and Rural Native Indigenous Peoples

Article 30, 15. To be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them. In this framework, the right to prior obligatory consultation by the State with respect to the exploitation of non-renewable natural resources in the territory they inhabit shall be respected and guaranteed, in good faith and upon agreement.

Human Rights Council Resolution A/HRC/RES/15/9, September 2010 [in English]

Following the UN General Assembly resolution, ‘Following the UN General Assembly resolution, this resolution of the UN Human Rights Council affirms that the rights to water and sanitation are part of existing international law and confirms that these rights are legally binding upon States. It also calls upon States to develop appropriate tools and mechanisms to achieve progressively the full realization of human rights obligations related to access to safe drinking water and sanitation, including in currently unserved and underserved areas.’

Law of the Rights of Mother Earth (Law 071) (Ley de Derechos de la Madre Tierra) [in Spanish]

The fundamental objective of the ‘Law of Mother Nature’ is to prescribe, uphold and guarantee the co-existence and preservation of life, recognising that nature has the same equal rights as humans and these rights should be protected and defended in the same manner. Mother Earth is not an object to be exploited without limit.

Chapter I:  Object and principles

Article 2. Principles

The binding principles that govern this law are…

No commodification.For which life systems or processes that sustain them cannot be commodified, nor be part of anyone’s private property.

Chapter III: Rights of Mother Earth

Article 7. Rights of Mother Earth

The law enumerates seven specific rights to which Mother Earth and her constituent life systems, including human communities, are entitled to…

…water: It is the right of the preservation of the quality and composition of water to sustain life systems and their protection with regards to contamination, for renewal of the life of Mother Earth and all its components.


Selection as a Future-Just Policy

Against a background of soaring water prices of over 200% in the central Bolivian city of Cochabamba – imposed by a private consortium involving the international corporate heavyweights Betchel – took place a public uprising and mass social mobilisation of Bolivia’s indigenous population. These protests were known as the ‘Cochabamba Water Wars’ of 2000 and brought an end to the increasing tariffs, securing a landmark victory against the commodification and exploitation of Bolivia’s water resources.

Ultimately, these protests acted as a catalyst which paved the way for a great period of social, political and economic reform, and the voting of Evo Morales to power followed by a decision to reform Bolivia’s Constitution. The major objectives of the reform were to directly protect Bolivia’s natural resources, increase the rights of its indigenous population, and look to the collective interest of the Bolivian people, all whilst also guaranteeing water security in Bolivia.

The new Constitution came into force on the 7 February 2009, with President Morales stating that he had accomplished his mission to “re-found” Bolivia. Water was formally recognised as a ‘basic human right’ and guaranteed at the very top of the hierarchy of legal norms – within the Constitution.

Under Article 16 I, the new Constitution formally and legally acknowledged that ‘every person has the right to water and food’, and under Article 20 III, ‘access to water and sewer systems are human rights… in accordance with the law’. 

Furthermore, under Article 373 I, ‘water constitutes a fundamental right for life, within the framework of the sovereignty of the people… the State shall promote the use and access to water on the basis of principles of solidarity, complementariness, reciprocity, equity, diversity and sustainability’ demonstrating a commitment to uphold these rights for future generations.

Internationally, Bolivia gained widespread acclaim for its progressive water security policy, and has continued to lead the way for the formal international recognition of water as a ‘basic human right’.  At the 2010 UN General Assembly, the UN General Assembly affirmed that the rights to water and sanitation are part of existing international law and confirmed that these rights are legally binding, calling on all states to develop appropriate tools and mechanisms to progressively achieve this realisation.


Future-Just Policy Scorecard

Our “Best Policies” are those that meet the Future Just Lawmaking Principles and recognise the interconnected challenges we face today. The goal of principled policy work is to ensure that important universal standards of sustainability and equity, human rights and freedoms, and respect for the environment are taken into account. It also helps to increase policy coherence between different sectors.

    Sustainable use of natural resources

  • Constitution – Article 373, I. Water constitutes a fundamental right for life, within the framework of the sovereignty of the people. The State shall promote the use and access to water on the basis of principles of solidarity, complementariness, reciprocity, equity, diversity and sustainability.
  • The National Service for the Sustainability of Basic Sanitation Services, (SENASBA), was created for the ‘development and strengthening of potable water and sanitation services, in a participative, inclusive, fair and transparent manner, with the capabilities of the service providers, contributing to the sustained well-being of the Bolivian population’.
  • Connected on the ground, municipalities have a far greater understanding of natural resources, enabling their effective control of local water supplies.
  • Problems remain with regard to continued population growth and industrialisation, requiring vast quantities of water for continued human and industrial development.

    Equity and poverty eradication

  • Public sector control has brought stabilisation and accountability to the cost of water for Bolivian people.
  • Formally recognising water as a ‘basic human right’ is an example of both inter- and intra-generational equity.
  • The right of all people to the most basic ingredient of human life denotes a commitment and responsibility to human life.
  • The removal of private control, has resulted in the stabilisation of previously exponentially increasing water tariffs, bringing down the cost of water to the Bolivian people.
  • Since this period there has been a marked increase in accessibility to both clean drinking water and sanitation, notably for poorer sections of Bolivia’s society.
  • However, water scarcity in Bolivia somewhat hinders the government’s ability to constitutionally uphold water as a basic human right.

   Precautionary approach

  • Water is an essential prerequisite to life. Securing water under public control, and inclusion of this in the Constitution denotes a clear commitment to precautionary human health.
  • Many other articles within the constitution reinforce the safeguards of water as a natural resource, including:

    TITLE I: FUNDAMENTAL BASES OF THE STATE, CHAPTER IV: Rights of the Nations and Rural Native Indigenous Peoples, Right to culture Article 30 – ‘In this framework, the right to prior obligatory consultation by the State with respect to the exploitation of non-renewable natural resources in the territory they inhabit shall be respected and guaranteed, in good faith and upon agreement’.

    TITLE II: ENVIRONMENT, NATURAL RESOURCES, LAND AND TERRITORY, CHAPTER VII: Biodiversity, Coca, Protected Areas and Forest Resources, Section I: Biodiversity, Article 380 – ‘The renewable natural resources shall be exploited in a sustainable way, respecting the characteristics and natural value of each ecosystem’.

    TITLE III: DUTIES, CHAPTER VII: Social Communication, Article 108 – ‘To protect and defend the natural resources and to contribute to their sustainable use in order to preserve the rights of future generations’.

    TITLE IV: JURISDICTIONAL GUARANTEES AND ACTIONS OF DEFENSE, CHAPTER I: Jurisdictional Guarantees, Article 124 – ‘The Bolivian who engages in the following acts commits the crime of treason against the country:  Violates the constitutional regime of natural resources.


   Public participation, access to information and justice

  • Mass public participation in protests against privatisation brought about the initial calls for reform.
  • Bringing water back under public control has led to greater participation of NGO’s, civil society and the general public, with focus shifted from privatised profit making, to sustainable approaches.
  • Projects such as Water For People (1997) has been invited post 2008 by the Bolivian government for wider participation in delivering strategic programs seeking to address water and sanitation needs in rural municipalities, bringing sustainability through technical expertise.

    Good governance and human security

  • The Bolivian government’s recognition of water as a basic human right, enshrined in the Constitution, demonstrates a genuine commitment towards securing one of the most fundamental and basic ingredients of human life.
  • Bolivia was one of the first countries to advocate water security policy constitutionally, setting a precedent for intergenerational responsibility, with consideration of future generations and their human security.
  • While water security has been a focus of the Bolivian government, it has otherwise struggled to balance this with the prioritisation of major investment and infrastructure building.

   Integration and interrelationship

  • Water security is now constitutionally recognised as a human right, thereby becoming a major factor in government decision-making.
  • Water, gas and rights reform for Bolivia’s indigenous population were all inter-related reasons as to why Bolivians mobilised towards progressive social, political and economic reform.
  • Food security is now expressly mentioned under a range of articles. For example, under Article 16 I, (alongside water) food is also recognised as a ‘basic human right’ and well as Article 16 II, which states  ‘The State has the obligation to guarantee food security, by means of healthy, adequate and sufficient food for the entire population.
  • Food security is also specifically mentioned under Chapter VIII: Distribution of Authority, Article 302, 12) ‘Projects of alternative and renewable sources of energy, preserving food security within the municipality.’
  • Chapter V: Water Resources, Article 375 II,  also recognises the interconnection between water and food security, ‘The State shall regulate the management and sustainable administration of the water resources and the basins for irrigation, food security and basic services, respecting the uses and customs of the communities.

    Common but differentiated responsibilities

  • The right to water takes into account historic inequalities by considering the rights of the nations and rural native indigenous peoples. The Government is constitutionally obliged to consult them according to the appropriate procedure with regards to the exploitation of non-renewable natural resources.


Context

The ‘Cochabamba Water Wars’ (2000), were a series of protests in response to the privatisation of the city’s municipal water supply ‘Semapa’. Following pressure from the World Bank, the Bolivian government had put ‘Semapa’ up for auction, and Bolivia’s water sector was privatised under a consortium of transnational companies.

Tensions erupted when a new firm, Aguas del Tunari was required to heavily invest in the construction of a long-envisioned dam, consequently resulting in the company’s decision to dramatically inflate water rates. Upon taking control, the company raised water rates by an average of 35% to approximately $20 a month – for the average Bolivian this constituted roughly 20% of a monthly salary. A backlash seemed inevitable. Decisions made by the private consortium were very much out of touch with the needs of the people, a manager for the consortium was reported to have said “if people didn’t pay their water bills their water would be turned off.”

Protests, largely organised through the Coordinadora in Defence of Water and Life (a community coalition) took place throughout early 2000. In addition, middle-class home-owners, and large business owners stripped of their subsidies, saw their own water bills increase, and joined the protests.

The Cochabamba Declaration

‘Water belongs to the Earth and all species and is sacred to life. Therefore, the world’s water must be conserved, reclaimed and protected for all future generations and its natural patterns respected.

Water is a fundamental human right and a public trust to be guarded by all levels of governments. Therefore it should not be commodified, privatized or traded for commercial purposes. These rights must be enshrined at all levels of government. An international treaty must ensure these principles are non-controvertible’

This struggle preceded further social movements. From 2000 – 2005, throughout what became known as the ‘gas wars’, there were further clashes between protestors and government, which ultimately resulted in the election of Evo Morales coming to office under the promise of reform.

Evo Morales’ ideology in reversing Bolivia’s neo-liberalist public policies, led to a period of vast reform, where he sought to move from foreign privatisation to re-municipalisation, bringing many of Bolivia’s institutions back under public control.

Consequently, with the re-writing of the Constitution (2009), the control of Bolivia’s water and sanitation services were returned to the public sector and water  was formally recognised within the constitution as a ‘basic human right’.


Objectives

  • The public uprising and mass mobilisation of Bolivia’s indigenous population, known as the ‘Cochabamba Water Wars’ of 2000, sought to end water tariffs and stabilise exponentially rising water prices.
  • Bring Bolivia’s water supply and control back to public control, under a de-centralised system of local water municipalities.
  • Through remunicipalisation enable a social, political and economic connection between water providers and the people they serve, bringing greater transparency, accountability, and sustainability, to Bolivia’s domestic water policy.
  • A reversal of neo-liberalist policies that had enabled international private companies to profiteer from the – often poor and impoverished – Bolivian people.
  • The decommodification of water.
  • Under a new constitution the formal and legal recognition of water as a ‘basic human right’.
  • Increase access to drinking water and sanitation in both rural and urban areas.


Methods of Implementation

  • Article 16, I. Every person has the right to water and food.
  • Article 20, III: Access to water and sewer systems are human rights, neither are the object of concession or privatization, and are subject to a regimen of licensing and registration, in accordance with the law.
  • Article 373, I. Water constitutes a fundamental right for life, within the framework of the sovereignty of the people. The State shall promote the use and access to water on the basis of principles of solidarity, complementariness, reciprocity, equity, diversity and sustainability.
  • Article 374, The State shall protect and guarantee the priority use of water for life. It is the duty of the State to manage, regulate, protect and plan the adequate and sustainable use of water resources, with social participation, guaranteeing access to water for all the habitants. The law shall establish the conditions and limitations of all the uses


Impact

Bolivia’s constitutional reform (2009) set a precedent in the formal and legal recognition of water as a ‘basic human right,’ offering the most significant advancement of economic, social and cultural rights that Bolivia had seen in many decades.

Since Bolivia brought water back under public control, under a de-centralised system of local water municipalities, there has been a steady increase in access and sanitation to water in both rural and urban areas.

According to WHO statistics, between 2000 and 2012:

  • rural water access has risen from 56% to 72%, with a total of 88% of the population now with improved access to water sources;
  • there has also been an increase in rural sanitation coverage from 18% to 24%, combined with an increase in overall sanitation coverage to 44%; and
  • finally, 88% of the population had access to improved drinking water, 96% and 72% in urban and rural areas respectively.

While these are only steady increases, with Bolivia remaining a long way behind other parts of the world, these statistics do show an upward trend relating to overall coverage, access and sanitation since the water wars of 200 and the removal of privatisation.

Transparency has also been improved with public agencies such as SEMAPA now making publicly available their strategic objectives,  in a hope of achieving “financial and technical sustainability, managing efficiently the financial resources within the framework of transparency, to improve potable water and sewage systems, optimizing all processes for this purpose and provide better service to users’ .

SEMAPA also allows freedom of information of its accounts year by year, allowing public visibility of its investment and revenue streams, with public hearings and direct public participation holding the agency to accountability. In September 2011, the public servants of SEMAPA signed the “Political Manifesto Decolonization of the Public Ethics and Behaviour Revolution Servants and Public Servants of the Plurinational State of Bolivia to the Bolivian people” which is a document outlining 10 key principles of ethics that public servants have to comply with whilst in control of municipal water management, denoting a commitment by the public sector to offer accountability.

Problems remain however. The fact that Bolivia still has a high degree of water scarcity is a problem not easily overcome. Furthermore, under Evo Morales, Bolivia has sought to develop and strengthen its economy, with the focus of national development on industrialisation a major priority which has resulted in water infrastructure coming secondary to many government industrial interests.

Furthermore, some social reformers in Bolivia believe that the reference to “mixed” entities (within the Constitution) leaves open the possibility that the government could once again engage in public-private partnerships.

Regardless of these problems, it is with beyond doubt that there is a far greater transparency, accountability, and sustainability, to Bolivia’s domestic water policy. Re-municipalisation has ensured that there is a now a social, political and economic connection between water providers and the people they serve.

Internationally, Bolivia has received widespread international acclaim for its recognition of water as a basic human right. In setting such a precedent, Bolivia has acted as a pioneer in the global water justice movement. On 28 July 2010, the UN General Assembly voted on a resolution for the right to water and sanitation, explicitly recognising these as human rights and acknowledging that clean drinking water and sanitation are essential to the realisation of all other human rights. While the resolution is not legally binding, it demonstrates a realisation in understanding of water as a fundamental common good that is essential for life.

Then, the UN Human Rights Council (September 2010) under resolution A/HRC/RES/15/9 – formally recognised that ‘the rights to water and sanitation are part of existing international law and confirms that these rights are legally binding upon States. It also calls upon States to develop appropriate tools and mechanisms to achieve the full realisation of human rights obligations related to access to safe drinking water and sanitation, including in currently unserved and underserved areas.’


Potential as a Transferable Model

The precedent set by Bolivia and Ecuador have been replicated in many other nations. Many other constitutions contain explicit references to the right to water, including those such as the Democratic Republic of the Congo, South Africa, Uganda and Uruguay. The right to sanitation has also been recognised in constitutions and national legislations, including Algeria, the Maldives, South Africa, Sri Lanka and Uruguay, therefore demonstrating that other states can adopt similar successful policies that will secure the future of generations to come.

Consequently, the constitutional recognition of water as a ‘basic human right’ is a highly transferable and highly replicable policy reform, which only requires the will of the government to recognise it. The challenge of course, comes with implementation and the challenge of private interests alongside other governmental priorities.


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