Caribbean & Central America - February 2022

At the end of December, El Salvador’s 84-member unicameral legislature approved a new water law. The new legislation was hotly anticipated; the issue has been debated for years amid growing fears about water scarcity in El Salvador due to factors such as climate change, deforestation, and pollution. However, the approved initiative has met with criticism from organisations like Alianza Nacional contra la Privatización del Agua (Anpa) which includes environmental NGOs, the Catholic Church, and universities, as well as from two United Nations Special Rapporteurs, Pedro Arrojo-Agudo (water & sanitation) and David Boyd (human rights and the environment).

Back in June 2021 President Nayib Bukele announced he was sending down a proposed initiative on water resource management and establishing an ad-hoc commission to study it and discuss it with various groups. The need for such legislation has long been highlighted by environmental groups: in 2016 the human rights ombudsman’s office published a report warning that El Salvador could be uninhabitable in 80 years unless radical action was taken. Also in 2016, the then Frente Farabundo Martí para la Liberación Nacional (FMLN) government led by Salvador Sánchez Cerén (2014-2019) was forced to declare a water shortage emergency for the first time in the country’s history. While deadlock in previous legislatures held up approval of earlier bills addressing the issue, the ruling Nuevas Ideas (NI) has a two-thirds majority in congress following its February 2021 election victory, thereby removing this obstacle.

The approved bill, which was passed by the legislature on 21 December, states three basic tenets: that “water is a fundamental right for all; the State will guarantee the good use of this resource; and it will not be privatised under any context or form”. It also establishes that water rights will be administered by a government board with representatives from different ministries as well as one from the national university and one from civil society (appointed by the president). 

The decision to enshrine the right to water as fundamental was welcomed by groups such as environmental NGO Unidad Ecológica Salvadoreña (UNES). However they complain that the new legislation does not provide the conditions or elements for this right to be satisfied. Meanwhile two separate statements released on 22 December by various NGOs including Anpa, UNES, El Foro del Agua and civil-society group Fundación de Estudios para la Aplicación del Derecho (Fespad), among others, outline a string of further objections to the new law. These include the fact that it does not rule out the possibility of water being exploited through economic agents via concessions or public-private partnerships. Other objections include the fact that the timeframes of contracts for water exploitation by the private sector (of up to 15 years and renewable) are excessive and do not allow for timely evaluation to take into account water availability.

NGOs also point out that the new law fails to incorporate recommendations made by Arrojo-Aguo and Boyd in a letter to President Bukele dated 1 November. Among other things the UN Rapporteurs highlighted that the law recognises the right to “water and sanitation” which, while closely related, are in fact two different rights and should be treated differently. It warns that the new law fails to address the right to sanitation and recommends the creation of a specific section to address its regulation which should include the treatment of sewage, among other things.

• Other objections

In their letter to President Bukele, Arrojo-Aguo and Boyd highlighted other concerns such as the fact that private companies are not “exhaustively required” to request environmental permits based on corresponding technical studies from the relevant authority.