S. Tasiopoulos PhD (c), Water and Constitutional Revision

Stavros Tasiopoulos, Lawyer, PhD (c) in Public Law, Athens School of Law

*An older version of this article has been published at the website of Canadian International Law Association http://ila-canada.ca/?p=13875

            The upcoming Constitutional Revision in Greece presents timely opportunity to include the establishment of the right to water as a human right, based on the example of Uruguay and the Revision of 2004 that took place in that country.

            Through a referendum with constitutional force, the people of Uruguay succeeded not only in adding an article to the Constitution for the right to water but also a commitment to provide water supply services exclusively by public bodies and the existing private services were canceled immediately and return to public bodies (1).

            The referendum was promoted by a coalition of movements and organizations under the name National Commission in Defense of Water and Life (CNDAV), with their main goals being to reduce the high cost of  operation by private water companies and the disproportional environmental burden result  from inadequate access to safe drinking water for all.

            The importance of the decision also lies in the fact of the removal of private companies from existing concession contracts was compensated solely for the costs occurring  prior to the referendum thus excluding compensation until the expiration of the contract. Quite simply, no compensation was given for future economic losses of the companies. (2)

            On October 31, 2004 an overwhelming majority, 62.75%, of the citizens of Uruguay voted to include of a new provision in the Constitution of their country: access to drinking water and sanitation are fundamental human rights.

            The provision further states that water is a matter of general interest included in the public interest and that water services will be provided exclusively by the Public sector with the use of legal entities of the state.

            Based on the example of Uruguay, the Greek constitutional status is called to move forward in an innovative path that will influence the evolution of such a right across the European Union which has already seen significant remunicipalization of water services within its various member States.

            Also Article 345 of the Treaty of Functioning of the EU does not prevent potential laws arising from a Constitution Revision procedure in a member-state.

            An introduction of the right to water in the Constitution on the basis of scientific studies and UN proposals is recommended. However, such a proposal should also include extensive public participation through Open Governance tools and capacity building.

            Through a consultation process, a qualified legal team will prepare the form of the provision, in cooperation with the Parliamentary Committee for Constitutional Review.

            The inclusion of a provision for the right to water in the Constitution does not negate the importance of existing court decisions or articles on other parts of the legal framework.

            However, the explicit establishment of a right to water confers a very particular legal legitimacy as well as additional legal power as well as being in line with the 2010 – UN decision (3).

A possible version of the new provision in the Constitution 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 cover their needs.

 

  • The economic and any other inability of every person, in no way is an obstacle to the provision of services.

 

            The Constitutional guarantee could also include the consolidation of the right to water as an individual right and the provision of water services as a state obligation. Moreover,  this was the direction taken by the Council of the State in its plenary Decision 1903/2014, where it considered that appropriate entities to provide water services, that were reliable and ensured citizens access to affordable water, where the public services (4).

            Furthermore, according to the proposal above, the constitutional guarantee of ensuring the right for water by the state through public entities, does not prohibit private operators from providing water services to the citizens and the state.

            The proposed amendment to the Constitution does not restrict the market economy which is also the position of the European Commission according to the Communication of March 2014 on the proposal of the European Citizens Initiative for Water.

            In particular the answer (5) given, was: “… 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 … “

            Moreover, taking into account the direction of the European Parliament’s resolution on September 8, 2015 (6), on the prospect of the European Citizens’ Initiative for Water, the inclusion of a specific provision in relation to water in the Constitution of Greece, will be a fulfillment of the resolution’s inducement.

            Lastly and rather importantly we could see Greece following on Slovenia (7) and becoming the second European country and member of the European Union and the Eurozone to proceed with such a provision.

            As the Parliamentary Constitutional Revision Committee has been established (8) on November 14th 2018, and the Governing Syriza Party has proposed an amendment,  to keep public utilities like water and electricity services under public control (9), it’s obvious that the tipping point now is to introduce the most appropriate ammendemnt, taking into consideration all the parametres.

            Giving institutional importance to the right of water, in line with the remunicipalization of Paris and the Revision of the Constitution of Uruguay, is a key movement towards the implementation of Goal 6, of Sustainable Development Goals – SDGs (10).

            The right to water achieves its fullest potention, through its inclusion  into the body of the Constitution, as a fundamental human right, and the provision that the State should provide water services through public control utilities, must also be included, allowing also private actors to be able to provide same services.

            This balanced proposal takes into account the human needs and the State’s role to guarantee an affordable access to every citizen, and also allows private economy to operate without obstacles, setting a reliable and inclusive framework for modern and upcoming needs.

 

Sources:

  1. Moshman, Rachael. “The Constitutional Right to Water in Uruguay.” Sustainable Development Law & Policy, Winter 2005, p.65
  2. Making water privatization illegal: – new laws in Netherlands and Uruguay , Public Services International Research Unit (PSIRU) www.psiru.org , 31/11/2004, p. 2
  3. “…When the United Nations recognized the human right to water and sanitation, humanity took a collective step forward in its evolution…” , Μ. Barlow, Our Right to Water, A people’s guide to Implementing the UN’s Recognition of the Right to Water and Sanitation, The Council of Canadians,
  4. Consideration 22, Council of State, Plennary, 1906/2014
  5. Brussels, 19.3.2014 COM(2014) 177 final, p. 10
  6. Resolution of European Parliament, September 8, 2015 for the continuation of the European Citizens Initiative «Right2Water» (2014/2239(INI)) P8_TA(2015)0294
  7. Slovenia adds water to constitution as fundamental right for all, https://www.theguardian.com/environment/2016/nov/18/slovenia-adds-water-to-constitution-as-fundamental-right-for-all
  8. http://www.ekathimerini.com/234358/article/ekathimerini/news/debate-on-greek-constitutional-revision-to-start-on-nov-14
  9. https://www.amna.gr/en/article/306734/SYRIZA-tables-proposals-for-constitutional-revision

10.Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015,   A/RES/70/1, Goal 6:  Ensure availability and sustainable management of water and sanitation for all 6.1 By 2030, achieve universal and equitable access to safe and affordable drinking water for all

By |2018-11-28T13:34:23+00:00November 28th, 2018|volume II|0 Comments

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