Is it necessary to regulate a right to drinking water in the constitution?

The proposal for the Directive on concessions into 2013 (nowadays Directive 2006/123) started a discussion, not only in Slovenia, but also in other EU Member States, whether is it really wise award the supply of drinking water to private sphere. It is not that this was or is prohibited, but including concessions on supply of drinking water is a possibility in the directive is an important hint for Member States and municipalities, which are in charge for supply of drinking water. Concessions, private capital, usually follow a profit, which might be in the field of water services rather easily accessible; especially if natural circumstances allows easy access to drinking water. That experiences, worldwide, with concessionaires’ behaviour in that field, on the one hand, and on the other hand a strong public interest to free access to drinking water and its supply, indicate that they are not always compatible. Member States, especially civil initiatives started different campaigns to legally regulate access to drinking water, not only in the level of national statues but also on the level of constitutional principles.

Not only that the idea was to regulate a access to drinking water as a human right, but also to limit the possibility to supply drinking water only to the public companies, i.e. to the public sphere.

Both questions are elaborated in this blog; first, Art. 72 of Slovene Constitution defines that everybody has a right to healthy leaving environment. But, does this include also supply of drinking water or a right to have access to drinking water is not a indisputable question.

According to Slovenian Constitutional Court’s decision from 1998 (Up-156/98) the Constitutional Court did not ruled on absolute access to the drinking water, but it focused on the property right; if the supply is not provided, than the property right cannot be fully functional. In another words, the Constitutional Court is not referring to Art. 72 as an unconditional or unlimited right to the access to drinking water. From this point of view, we are not totally sure, how would similar cases be judged, and whether Art. 72 includes a right to drinking water as a human right or not

.

Secondly, limit the activities of the supply of drinking water only to public sphere, might be questionable from legal point of view and also from social and political point of view. In addition, it is not only national law that can give answers to this questions but also international and European law. Especially European law which, if one have in mind a draft proposal on services directive, can treat water as a good and therefore open to the market. If this would be so, than member states has to find an overriding reason in public interest or mandatory requirement to exclude supply of drinking water from the market and prohibit that access to the market in this respect (market entrance). However, we experienced in 2012 that European Commission answered (reg. nr. ECI(2012)000003) to the civil initiative Right2Water stated that water is not a commodity, but public good (http://ec.europa.eu/citizens-initiative/public/initiatives/finalised/details/2012/000003/sl). That means that water is not part of the market in the EU and that the Member States are free to define how to supply and who can be in charge of the supply to drinking water. However, even so, there are situations and  circumstances where institutions and bodies in charge for the supply (municipalities in Slovene legal order) have difficulties organising system of the supply and where it would be perhaps more suitable to awards concessions. Prohibiting an access of the private sphere/capital to the activities of the supply of the drinking water, might, from this reason, be unreasonable.

A fear of concessionaires and under what conditions can they supply drinking water, can be accessed from another angle. Namely, it would be perhaps more suitable to define in the level of national statue (not the constitutional level) what exactly does it mean the access to drinking water from technical point of view, legal and social point of view, point of view of  quality, etc. Namely, it is not only the concessionaire who can make different obstacles in the supply of drinking water, but also a public company can be capable of doing it (for instance like a prohibition to citizens to collect their own rain water, to abandon free public access to public sources to drinking water, prepaid systems, etc.).

It can be defined what shall constitute an access to drinking water, also to assure the quality of drinking water. It is not necessary to prohibit to private sphere to be active in this respect. It is better to adopt rules on supply. Private interests and public interest of every person to have access to drinking water, can that way be much less controversial when they meet. They can live together.

Categorised in: Blog

This post was written by Rajko Knez