"The view of nature attained under the
domination of private property and
money is a real contempt for, and
practical debasement of, nature."
Karl Marx, "On the Jewish Question" (1844)
Water, a slave of capital
When we human beings, many centuries ago, placed ourselves figuratively speaking on the margins of Nature, we began to grant it a passive role as an object whose commodification ended up being fully acceptable. And so, fuelled by the very origins of the notion of progress, little by little that role of supplier of raw materials for production and repository of waste was consolidated, and in any case to be dominated. The "metabolic rupture" of society and Nature envisioned by Karl Marx was thwarted, both by the anthropocentric positions of this brilliant universal thinker, and above all by the simplicity of many of his followers. Thus, with the predominance of the marginalist and neoclassical impulse, economic thought buries "metabolic" thinking and ends up consolidating the commodification of Nature. And in this market, water is just another commodity.
To the increasing denaturalisation of economic activities, which has weakened the natural community of life, the individualisation of the human community has been added, especially through unbridled consumerism linked to endless greed. Thus Nature, transformed into an object of accumulation, and human beings, also taken as elements to be exploited, individualised as producers and consumers, become fully part of an increasingly frenzied dance of commodification of life and its relations. Water, as already mentioned, is no exception and is enslaved, even on the Wall Street stock exchange.
Efforts to emancipate water
Faced with this harsh reality, the struggles for water are multiplying more and more. There are many examples in all corners of the planet. From different approaches and processes, progress is being made in this direction. Even within the United Nations - on the initiative of the Plurinational State of Bolivia - a declaration in favour of water was made in July 2010, stating that access to drinking water is a fundamental human right. Although this step was marked by a lack of support from rich countries - owners of transnational water companies - its significance remains important. Because that achievement was made possible by other struggles aimed at a great transformation.
The immediate fruit of this decision in the United Nations was the Ecuadorian Constitution of 2008, known throughout the world for being the first to constitutionalise the rights of Nature and, consequently, granting a special status to water. We recall that, from the outset, Article 3 of the Constitution established as primary duty of the State that of guaranteeing, without any discrimination, to all its inhabitants the effective enjoyment of the rights to education, health, food, social security and water.
From this initial definition, fundamental principles were approved in the Constituent Assembly of Montecristi, as Article 12 states:
"the human right to water is fundamental and inviolable. Water constitutes a strategic national patrimony of public use, inalienable, imprescriptible, unassailable and essential for life".
Among the many constitutional elements linked to the vital liquid, the hoarding of water (and land) is prohibited. And, in addition to the above, it has been sanctioned that water, as a human right, transcends the commercial view and that of the "customer" who can only access water that he or she has the ability to pay for. Water, as a strategic national asset of public use, redeems the role of the State, which has the power to grant the use of water and a guiding role in this respect. Water, as an asset of society, must be managed with a long-term perspective, i.e. looking to future generations, freeing water from the short-term perspective of the market and speculation. And water, as a common good, recovers the community element from which it is necessary to reconsider this vital issue in its entirety, since one of the priorities of its use is the maintenance of the ecological water cycle.
Water, therefore, is fully included in the definition of Nature as a subject of rights. These are rights of their own that fully guarantee the existence, maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. It is stipulated that any person, community, people or nationality may demand that public authority respect these rights. And, in line with these clearly revolutionary provisions, Nature has a right to reinstatement, which is independent of the obligation of the State and natural or legal persons to repair environmental damage or to compensate individuals and groups who depend on damaged natural systems. It is also worth noting that there are clear provisions to sanction cases of environmental destruction, complemented by the principles of precaution and restriction for activities that may lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles. Let us summarise the above by quoting Leonardo da Vinci: "Water is the driving force behind all Nature". And for this reason, the defence of water as a human right, as well as the intrinsic rights of water itself, is progressively gaining strength.
Although these positions have not been respected by the governments that followed the majority approval of the Montecristi Constitution in 2008 at the ballot box, various organisations and communities, those that overcame countless difficulties to inspire these constitutional achievements, have multiplied their struggles of resistance.
Popular consultations for water in the Equatorial Andes
In the face of relentless extractive pressures - including the large-scale mining imposed by Rafael Correa's government - many communities are defending their rights to life, briefly mentioned above. Thus, in many territories where mining has sown "blood and fire" hatred and division among families themselves, with the recovery of the constitutional right to participate in decision-making processes, communities have deployed various actions of struggle. With their responses they face looting, devastation, violence, false hopes of prosperity, announcements of million-dollar gains that in reality are nothing more than perverse chimeras...
At the same time they challenge the political and media power that encourages mining companies by tolerating or even sponsoring systematic violations of the Constitution: a perverse situation in which even mining companies considered legal are based on illegality and even unconstitutionality. And by resorting to existing rights, including the constitutional right to resistance of Article 98, many communities have put and continue to put the powerful government mining blockade in check.
Thus, on 7 February, as part of the first round of the electoral process to elect the President of the Republic and the new legislative body, a historic popular consultation was held in the city of Cuenca, the third most populous canton in Ecuador, within the terms of Article 104 of the Constitution. Eighty per cent of the votes were cast in favour of water against the extraction of metals in the water recharge areas of the Tarqui, Yanuncay, Tomebamba, Machángara and Norcay rivers; water that originates in the paramos and forests surrounding the Cajas National Park and that is used for various purposes by the inhabitants of this area.
These rivers provide irrigation for agriculture and dairy activities, and directly supply water to the people of Cuenca and to many communities in the area, many of which make their living from tourism. What is worrying is that more than 200 mining concessions surround the paramos of the canton, and this seriously threatens the supply of the vital liquid. In short, vital strategic interests for Cuenca are at stake, because mining in the water recharge areas of these rivers would infringe on the human right to water of its inhabitants.
As a result of a long process, overcoming countless difficulties, the historic date has been reached. The road travelled is long. For more than twenty years, the peasant and indigenous communities of Azuay province, whose capital is Cuenca, have faced mining pressures.
There is an antecedent that cannot be forgotten. In the same province, in the canton of Girón, south of Cuenca, using various forms of struggle ranging from roadblocks to going through the complex maze of justice, they began to construct what later became the first binding popular consultation, i.e. referred to the constitutional provisions in the aforementioned Article 104, for which the necessary signatures had to be collected. But it would take almost 8 years for this consultation to crystallise: the government of the time, a loyal ally of mining capital, systematically blocked the exercise of the aforementioned constitutional right.
Sunday 24 March 2019, election day for provincial prefects, mayors and other local personalities, was the date on which a substantial step was taken for the subsequent consultation in Cuenca. In the small canton of Girón, in the province of Azuay, a popular pronouncement was made on the issue of mining - the first binding consultation of this kind in Ecuador. Several mainly peasant organisations were at the head: the Federation of Indigenous and Peasant Organisations of Azuay (FOA) and the Union of Community Water Systems of Girón, which had the support of several citizen groups, including the Collective Yasunidos de Guapondelig (Cuenca).
The communities fought against the power of the big mining companies and the state, and their determination to block the consultation by any means. Even in the final phase, both mining capital and the state presented numerous appeals to the electoral authority to block the holding of the consultation. With these precedents, the referendum in Girón, in which the communities won a resounding victory with 87% of the votes, was decisive in protecting the cases of the Kimsacocha páramo and then giving impetus to the Cuenca consultation.
The popular decision in Cuenca came after three failed attempts that had been proposed for the whole province, promoted by various organisations, under the leadership of the former provincial prefect: Yaku Pérez, later an indigenous candidate for the Presidency of the Republic (who was fraudulently prevented by the ruling clique from reaching the second round after the 7 February elections). This consultation in Cuenca overcame all kinds of legal traps with an intelligent strategy, in some circumstances even backed by the Constitutional Court, counting on the support and leadership of a peasant-citizen alliance, which is the element that motivates the great triumph achieved. In this case, the way to the popular consultation was not opened with the collection of citizens' signatures as in the case of Girón, but - as provided for by constitutional rules - a majority was reached in the Cuenca Cantonal Council in order to move towards the referendum, which is already causing increasingly strong echoes. For example, work is already underway for new binding consultations in other areas of Ecuador, such as the Metropolitan District of Quito, whose north-western region is seriously threatened by mining activities.
Thus, inspired by the example of Azuay, and with a strong alliance of farmers and citizens as its backbone, a popular consultation to protect water and biodiversity is also being developed in the city of Quito, Ecuador's capital. The water supply, the supply of quality food, as well as the existence of pristine forests with their enormous and rich biodiversity, are already seriously threatened by mining activities. And to make this binding consultation possible, following a long resistance, a broad front has been formed in which the Union of Local Governments and the Young Leaders' Network of the Mancomunidad del Chocó Andino, Pact's Anti-mining Front, conservation and sustainable use area management committees, and various urban collectives such as Yasunidos and Caminantes, among many others, are participating. The demand for this democratic exercise is already ready: it is only waiting for the approval of the Constitutional Court to start collecting signatures, as part of a process that is certainly complex, but which will also be a great exercise in popular pedagogy. This is what is reflected in the demand formulated collectively, with the aim of banning all forms of metalliferous mining from the Metropolitan Subsystem of Protected Natural Areas of the Quito Metropolitan District; and, within the Area of Ecological, Cultural and Sustainable Productive Development Importance constituted by the territories of the parroquias that make up the Mancomunidad del Chocó Andino.
However, these indisputable results are still insufficient. The perverse alliance between the mining companies and the state is not only based on the desire to impose their will. The list of loopholes used with the aim of not recognising the will of the people in Cuenca, or to reinterpret court rulings that paralyse mining activity, is enormous. It is argued that, if anything, the concessions predate the popular consultation and that this cannot have retroactive effect. Similarly, the argument is used that legal security would be at risk if mining were to be stopped, waving the threat of international lawsuits.
Supporting ongoing projects and even entrusted concessions, while ignoring constitutional and legal norms so as not to compromise special interests that affect the human and natural community, is an aberration: it would be like justifying the maintenance of slavery so as not to hit the slave owners...
It is enough to remember that when slaves were freed, there was no lack of those who claimed the "losses" suffered by their "owners", who were restricted in their "freedom" to trade, use and exploit them...
Something similar happened when, in England at the beginning of the 19th century, the work of boys and girls was questioned: "the controversy was enormous", Ha-Joon Chang, one of the main professors at Cambridge University, reminds us: "for the detractors of the proposal (it) undermined freedom of contract and destroyed the foundations of the free market". Undoubtedly, from a perspective of absolute legal certainty, what matters at all times is the common good and not exclusively private interests, including the full force of the Rights of Nature, as well as Human Rights.
Now, these transnational mining companies, which have lists to assess the greater or lesser openness of countries, i.e. their greater or lesser degree of submission to mining, see with great concern how these "bad examples" have been increasing for many years now, not only in Ecuador, but all over the world.
And they are right.
"Bad example" spreads worldwide
"Water is not for sale, water is defended", "first water then mine" are some of the many slogans that resound in Our America. By intensifying their efforts, confronting multinationals and complicit governments, thousands of people in the region defend their territories every day. It would be impossible to mention all these situations, but it is worth recalling some that have also passed through the difficult corridors of justice and constitutional institutions, promoting popular consultations.
Without claiming to be an exhaustive list, let us recall the most important popular consultations, which also served as experience and encouragement for those in Ecuador. Among the dozens of "bona fide" or binding popular consultations that have taken place, we would like to mention a few: the district of Tambogrande in Piura, Peru, is recognised as one of the pioneers for the popular consultation that took place on 2 June 2002, against projects aimed at extracting gold from the deposit located right below the population.
On 23 March 2003, a plebiscite was held in Esquel, Argentina, in which 82% of the votes rejected mining activities in the area: although not binding, it did allow Esquel to be declared a "non-toxic and ecologically sustainable municipality". In the same country, work is currently underway to launch a popular consultation in favour of a law for the integral protection of water, in order to sustain community life and ecosystems.
In Colombia, a country of neo-liberal and hyper-extractivist governments, ten consultations have already been carried out and dozens more have been proposed: on 28 July 2013, in the small and almost remote municipality of Piedras in Tolima - with an agricultural and livestock economy - the first binding popular consultation was held against the La Colosa mining district, planned to be one of the largest open-pit mines on the planet; and since then, overcoming a series of difficulties, popular consultations have multiplied to the point where they are apparently useless, due to pressure from the mining-government power. The options for realising these rights go beyond what has been telegraphed. There is more, in other areas as well, and we specify them below. In November 2016, the Atrato River and its basin, in Colombia, were recognised as a subject of right by the Constitutional Court, the highest body of constitutional control. The same thing happened in 2018 with the Colombian Amazon: two remarkable actions in a country where the Rights of Nature are won through creative responses from the citizenry, not being constitutionalised.
And it is not only Latin America that is mobilising in defence of water and the Rights of Nature. In 2016, the Uttarakhand Supreme Court in Naintal, northern India, ruled that the Ganges and Yumana rivers are living entities.
In March 2017, the Whanganui River in New Zealand was recognised as a subject of law so that it can appear in court through its representatives: the Whanganui iwi people. In 2013, Te Urewera National Park, in that same country, was also recognised as a legal entity with the rights of a person: if the land has no owner, it is jointly managed by the Crown and Tuhoe peoples.
In Nepal, an initiative is underway to recognise the rights of Nature by constitutional amendment.
In Africa, among the many struggles, we can mention the defence of the Niger River Delta in Nigeria.
Noteworthy steps are also being taken in the United States. In Toledo, Ohio, it was decided at the polls on 26 February 2019 that Lake Erie, the eleventh largest in the world and providing drinking water to 12 million Americans and Canadians, has rights. In turn, a group of North American citizens filed a lawsuit so that the Rocky Mountains and the Nevada desert can legally sue individuals, companies or governments in the United States.
In Europe, to mention another continent, hundreds of thousands of citizens are facing the privatisation of water services, with more or less positive outcomes. In Germany, in Berlin, efforts to make water common again have been successful, something similar has happened in Paris, France.
In Italy, this June will mark the tenth anniversary of the historic victory of the popular referendum when 95% of the 27 million participants categorically rejected water privatisation.
Similar efforts are also being made in Spain, Portugal, Greece...
The conclusion is incontrovertible. Community organisations, engaged in these inextricable twists and turns of justice - almost always manipulated or controlled by big business interests in collusion with governments - are obliged to make intelligent and creative use of all the tools offered by existing institutional arrangements. Similarly, they resist various forms of open or hidden violence with which defenders of life are persecuted, stigmatised, criminalised and even murdered, which by the way is what this struggle is about: the defence of life. Obviously, the issue goes beyond the technical-legal sphere, forcing us to rethink forms of resistance and re-existence.
Urgent, weaving global struggles of resistance
It is clear, therefore, that the transition to crystallise the rights of Mother Earth, which are ultimately the rights that guarantee the existence of human beings, requires multiple alliances. Bridges need to be built between the countryside and the city, bridges between the different regions of a country, and increasingly bridges between all the struggles of resistance in the world: in short, the global south - and even the global north - gripped by extractivism must unite.
Without minimising the historical origins and the social and environmental content of each struggle, what is at stake in these struggles is democracy. These are political facts that summarise the right of a community to decide on its territory and its life project in common. It summarises the decision of survival of peoples who have resisted and continue to resist the logic of capitalist accumulation that suffocates life, both of humans and of Nature. It seeks to prioritise a dignified life for all human and non-human beings rather than an unsustainable productivism and unstoppable consumerism forged out of alienating individualism: local particularity and globalising uniformity. It is the struggle between these worldviews, the overcoming of which should be directed towards a pluriversal horizon: a world where many worlds fit together, ensuring social justice and ecological justice at the same time.
This is why there is much more at stake in every popular consultation than mere legal disputes. These consultations, much more than the long and complex resistance and construction of alternatives, highlight - in no uncertain terms - the great potential of a democracy lived, practised and won from below, from the communities, and from there extended to other spheres of government. In the same way, they summarise lifestyles that must be respected, while opening up spaces for building other types of economy. And in the midst of the Covid-19 pandemic, the need to preserve this vital liquid as a right and no longer as a commodity is felt much more intensely.
And this democracy requires permanent actions in many fields, since popular consultations, as we saw in Cuenca, do not end up solving problems. If the popular will expressed in the ballot boxes of that city is not respected, in addition to continuing to fight along the complex path of justice, we must keep the way of resistance open, in the streets and in the countryside, rebellions and blockades, processions and demonstrations, and even new popular consultations. Let us not forget that this path to defending life is also full of heroic actions, such as the one known as the Water War that took place in Cochabamba between January and April 2000, when the popular sectors of that Bolivian city successfully mobilised against the privatisation of the municipal drinking water supply.
What we have summarised in these short lines represents the great message of this historic day in Cuenca, which will continue in Quito, as well as in many other regions of the planet: our commitment is to a life worthy of human and non-human beings. To use the blunt words of the indefatigable Argentine fighter Fernando Pino Solanas**, on the occasion of his participation in the International Rights of Nature Tribunal, in Paris, in December 2015, "perhaps there is no greater cause, since the Universal Declaration of Human Rights, than to fight for the Rights of Nature".
* Ecuadorian economist. He is currently a university professor, lecturer and above all a comrade in the struggle of social movements. Judge of the International Tribunal for the Rights of Nature (since 2014). Minister of Energy and Mines of Ecuador (2007). President of the Constituent Assembly of Ecuador (2007-8). Author of numerous books.
** Fernando Ezequiel Solanas (1936-2020), Argentinean, better known as Pino Solanas: film director and politician, deputy, senator, ambassador; judge of the International Tribunal for the Rights of Nature. A great reference point for dignity in the struggles he undertook and in which he participated.