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LGD 2008 (1) - Editorial to Water Issue


Dr. Radha D’Souza
Reader in Law
University of Westminster

This is an editorial published on 9 October 2008.

Citation: D’Souza, R. ‘Editorial’ , 2008 (1) Law, Social Justice & Global Development Journal (LGD).

This special issue of the LDG on ‘Water-justice and the Law in the “ Global South”’ is a contribution to the expanding scope of debates on access to water and water-justice for the poor in the ‘Global South’. The widening parameters of the debate are prompted by social movements for water-justice on the one hand and the intractable nature of problems entailed in water justice on the other. Water inequities, water conflicts, and demands for water-justice are not a new phenomenon. The etymology of the English word ‘rivals’ can be traced back to the Latin word rivalis referring to persons sharing the same stream. However, in so far as water conflicts always arise within specific types of property relations, especially land relations, within geo-historically constituted political-economies, demands for water-justice are inevitably embedded in specific forms of law-state-society relations and, chameleon like, change when those relations change. This contingency of water conflicts on specific political-economy formations and property relations requires revising our understanding of water conflicts when macro level changes occur. We find ourselves in such a transformative era, hence the need to revisit questions of access to water and struggles for water-justice.


In the present times water conflicts and the demands for water-justice occur within the macro level changes propelled by ‘globalisation’. Historically, colonial rule transformed water relations in colonial societies and made appropriation of water part of an international system of expropriations of natural resources of the colonies. ‘Globalisation’ brings back resonances of the colonial water-injustice issues by bringing into focus the global dimensions of water appropriation regimes. Contemporary water conflicts and demands for water-justice is influenced by the transition from state-lea d developmentalism of the post World War II era to market-lea d water privatisation of the post Cold War era. The articles in this issue search for ways of understanding the complexities entailed in the normatively simple question of access to or water. Contributors to the issue look for answers at various levels, empirical and theoretical, at meta, macro, meso and micro levels, and present the readers with a range of perspectives and insights on problems of access to water in the ‘ Global South’.


Patrick Bond traces contemporary problems of access to water for the poor in Johannesburg in the wake of privatisation to the meta historical processes of capital accumulation where regular boom-bust cycles create the dynamics of dispossession and expropriation. These meta-historical processes must not be allowed to become theoretical abstractions, however. While the historical underpinnings give us a deeper understanding of the water crisis that the poor in Johannesburg face today, we still need to engage the economics and politics of macro-level operations of UN agencies and International Organisations (IOs) such as the UNDP, WHO, IMF, WB and the WTO charged with the responsibility of development and poverty alleviation. Thus, it is the structural adjustment programmes of the IMF and WB that constrain choices for Third World states, WTO’s insistence on free movement for capital that dictates water privatisation, and together the IOs and UN agencies provide the macro level contexts for regulation of water delivery in Johannesburg. Paradoxically, as Bond points out, the very same UN agencies ‘impose ‘right-heavy’ but ultimately market oriented public policy from above.’ How are we to see this paradox? For Bond the paradox notwithstanding it is important for social movements to engage the contrasting discourses within the UN system through struggles to articulate demands of the poor for access to water at the local level.


One of the most inspiring stories of struggles of the poor for water-justice in the ‘Global South’ in recent times is the struggles of the people of the city of Cochabamba in Bolivia against water privatisation. Popularly referred to as the ‘water wars’, the struggles against privatisation in Cochabamba drew direct attention to the types of legal instruments that the IOs create to impose conditions and inscribe penalties on states and populations of the ‘Global South’. Susan Spronk, taking the ‘water wars’ as her point of departure analyses the Bilateral Investment Treaties (BITs), an important legal vehicle for foreign direct investments, and shows how BITs operate as a conditioning mechanism limiting the options of the states to enforce socio-economic goals of access to water for the poor. The World Bank set up the International Court of Settlement of Investment Disputes (ICSID) to provide a mechanism to address ‘injustices’ to investors. Where do the poor go with their claims of injustices against investors? Legal theory casts responsibility for enforcing socio-economic goals and human rights on states. This legal theory becomes problematic, as Spronk points out, because BITs constrain state action, invite penal consequences for non-compliance and provide investors with forums to take compensation claims against ‘ injustices’ to corporations under international law. Spronk’s is the archetypal David vs Goliath narrative where struggles of the poor call into question the invincibility of Corporate Goliath and challenge the inevitability of ‘globalisation’. The ‘water wars’ in Bolivia raise more fundamental questions about sovereignty over natural resources acknowledged by the UN General Assembly Resolution on Permanent Sovereignty Over Natural Resources adopted in December 1962. How are we to understand a resolution adopted during the heydays of state-lead development model promoted throughout the Third World by UN agencies and IOs in the context of corporate lead globalisation of the present? As Spronk points out the ‘water wars’ in Bolivia raise ‘political questions about the meaning of democracy and the relationships between the international economy, state and civil society.’


The ‘water wars’ in Bolivia did however anchor water-justice issues to the growing movements against ‘ globalisation’ in the ‘Global North’ as well as the ‘Global South’. These ‘anti-globalisation’ movements high lighted the role of civil society. But, did popular struggles change the course of water privatisation? How do we assess the role of civil society in addressing the demands for water-justice? How exactly does civil society intervene in access to water, and do the mechanisms of civil society interventions make a difference to the outcomes for water-justice? Bronwen Morgan explores direct and indirect roles of civil society in regulation drawing on the experiences of six countries (four from the ‘Global South’ and two from the ‘Global North’) in the wake of privatisation of water delivery. Morgan’s focus is on the gaps between ‘regulatory spaces’ and ‘citizen spaces’. The gaps are important as it is within those gaps that the politics of water is played out. Civil society involvement is, however, not about theoretically romanticising what are inspiring struggles in practice, but also about acknowledging the limits of the possible within the wider macro-economic dynamics that Bond refers to. Morgan finds the fiscal and institutional capacities of states to support civil society involvement may determine the effectiveness and limitations of civil society participation. Not surprisingly, states of the ‘Global North’ are more capable of sustaining civil society interventions than states in the ‘Global South’. More fundamentally, Morgan observes that civil society participation may, by acting against the excesses of the market, stabilise the conditions for market oriented regimes of appropriation that the ‘anti-globalisation’ movements protest against. Civil society participation does not ‘detract from the stability that investors seek’; to the contrary, ‘routinization’ of civil society role could transform their role from one of resistance against privatisation to becoming part of the regulatory processes that ‘selectively opens space for some to participate in setting the basic rules and others not to.’


IOs and UN agencies, and anti-globalisation movements alike have sought to extend the idea of human rights, traditionally used to define political relationships between individual citizens and the state, to water. The demands to recognise right to water as a human right has paralleled globalisation and resistance to it. A number of international instruments now recognise right to water as a basic human right alongside a cluster of basic liberal rights. If Spronk and Morgan draw attention to bottoms-up interventions by civil society and help us assess the role of civil society, Derme n and Hellum assess the role of the state. Their study of local communities in rural Zimbabwe examines top-down interventions where state-law and constitution becomes the conduit through which international law percolates to local communities. Their focus is on the extent to which local normative frameworks, including customary law, is mediated by the state and the ways in which these mediations influence the way international law is ‘materialised’ at local levels of village, communities and women. In the case of water, so closely tied to property regimes, human rights to water becomes inextricably intertwined with right to livelihood, land tenure, irrigation systems, subsistence and commercial agriculture, and a host of wider questions about the political economy. Dermen and Hellum recommend state action on communal tenure rights, wetlands and small irrigation, and women’s land rights, all matters that alter the very notion of ‘human rights’ by blurring the boundaries between property and individual rights, so basic to the regime of rights in legal theory.


The tension between regulatory and citizen spaces (Morgan) within macro-level dynamics of historical capitalism (Bond), and the tensions between international economy and national democratic politics (Spronk) on the one hand and local land relations and the national political economy on the other (Derme n and Hellum) raises more fundamental, theoretical questions about articulation of demands for water-justice in the language of human rights in law. Can we speak of historical logics of capital accumulation and macro-dynamics of water without taking on board the historical critique of the place of rights within capitalism? If human right to water guarantees at best limited local successes, or incorporates civil society into regulatory processes of water appropriation, why do social movements continue to articulate the demands for water justice in the language of human rights? What is it about rights in liberal legal theory and philosophy that makes it so resilient? Why is it that social movements continue to demand human right to water in practice when radical critique has discredited human rights in legal theory? Radha D’Souza explores the tensions in the theoretical critique of human rights and the resilience of demands for human right to water within social movements. The articulation of water-justice in the language of human rights negates a long history of the critique of rights that parallels the critique of capitalism, and negates the achievements of revolutionary social movements inspired by the critique or capitalism and of rights in the late nineteenth and early twentieth centuries. Is it time then to revisit the theory that spawned very different types of resistances? asks D’Souza.


All of this is not to overlook the numerous legal decisions of courts in different jurisdictions where right to water is recognised and adjudicated. Inga Winkler presents an analysis of trends in judicial determination of the right to water. Rohan D’S ouza has kindly allowed us to reproduce his reviews of two books on water: Interstate Disputes Over Krishna Waters: Law, Science and Imperialism and Conflict and Collective Action: The Sardar Sarovar Project in India. The books affirm the importance and complexities of water conflicts and struggles for water-justice. We are grateful to the Economic and Political Weekly for allowing us to reprint the book reviews. Hopefully the articles in this special issue help to extend critical engagement of complex questions raised by demands for water-justice in the ‘Global South’.