Statement: U.N. Independent Expert on the human right to water and sanitation

September 25, 2009

Ms. Catarina de Albuquerque
Independent Expert on the human right to water and sanitation
Office of the High Commissioner for Human Rights
United Nations
1211 Geneva 10
Switzerland

Dear Ms. de Albuquerque,

Thank you for the opportunity to comment with regard to your mandate as Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation. As you compile a compendium of best practices, we wish to offer insights from our experience in the United States and around the world.

For more than 30 years, Corporate Accountability International has campaigned to save lives, protect people’s health and contribute to social development by challenging economic injustices and holding transnational corporations accountable to the interests of society at large. Corporate Accountability International is a civil society organization with 80,000 individual members and activists, primarily in the United States and Canada, and hundreds of NGO allies around the world. We are officially recognized by the World Health Organization (WHO), the Conference of the Parties to the Framework Convention on Tobacco Control (FCTC) and the United Nations Economic and Social Council (ECOSOC).

Corporate Accountability International is working with our members and allies to organize Think Outside the Bottle, an award-winning public education and action campaign. Think Outside the Bottle is educating millions of people about the dangerous reality behind the image of bottled water, building a base of power and support for public water systems across key constituencies, and generating direct pressure on the bottled water giants.

At the international level, we have recently participated in the consultation on human rights obligations related to access to safe drinking water and sanitation organized by the Office of the High Commissioner for Human Rights, and played an active role in the process of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises.

Throughout our history, Corporate Accountability International has raised awareness among the public and policymakers of the dangers of unchecked corporate influence over public policy, and called for safeguards against corporate interference in public policy decisionmaking. Our work in this arena reached a major milestone last November, when the WHO FCTC Conference of the Parties unanimously adopted stringent new guidelines to protect public health policy against the tobacco industry’s vested commercial interests, in accordance with Article 5.3 of the Convention.

In light of our organizational experience, we offer the following recommendations on best practices related to access to safe drinking water and sanitation.

1) The human right to equitable access to safe water and sanitation depends on public control and funding of water infrastructure.

An emphasis on “public-private partnership” implies equal roles in public policymaking for governments and business as well as joint decisionmaking, and ignores the need for safeguards against conflicts of interest. The public sector has one role to play in society at large, the private sector another, and civil society yet a third. Blurring those distinctions and ignoring power dynamics threatens equitable access to water and is dangerous to effective governance.

The more water becomes a high-priced commodity – the “oil of the 21st century” – the more public water sources and universal access to water become threatened. Bottled water corporations, for example, are convincing communities and individuals that the only place to get clean, safe water is from a bottle. However, bottled water has negative social, economic and environmental impacts. The growth of the bottled water industry threatens the political will to fund public water systems adequately. Public water systems have been critical to health and equality in the US, so they must be maintained in this country and secured throughout the world.

2) Governments must adopt, apply and enforce clear and binding standards on corporations. Voluntary corporate initiatives are inherently and seriously flawed.

Existing international law, in particular General Comment 15 on the International Covenant on Economic, Social and Cultural Rights, makes clear each State’s obligation to prevent third parties, including corporations, from interfering in the enjoyment of the right to water.

While States have the primary duty to uphold human rights, TNCs should also be held accountable under human rights treaties, laws and standards.

The United Nations, as an intergovernmental institution, must uphold the role and responsibility of governments to establish and enforce laws, regulations and policies – and the responsibility of corporations to abide by those laws, regulations and policies. Voluntary corporate initiatives can never replace legally enforceable measures. The UN must closely monitor and evaluate initiatives such as the Global Compact and the CEO Water Mandate, and modify or stop any collaboration with business that cannot be proven to complement and reinforce government authority and action.

In an October 2007 joint letter to John Ruggie, UN Special Representative on Transnational Corporations and Human Rights, more than 200 NGOs and individuals emphasized that voluntary corporate initiatives:

• Are limited scope in terms of the rights they include and the sectors they cover;
• Typically fail to ensure that the principles which they advocate are upheld in practice;
• Allow companies to “opt in” to standards which are convenient and to “opt out” of standards which are not convenient;
• Contradict the concept of human rights as minimum guarantees for the treatment of all people.

3) Corporate interests cannot be presumed to converge with the public interest.

The FCTC advances conflict of interest as a concept in international law that preserves and protects the primacy of human rights over commercial enterprise. The FCTC Article 5.3 guidelines take this understanding a step farther, recognizing the tobacco industry’s fundamental and irreconcilable conflict of interest with public health and spelling out specific recommendations to prevent it from undermining policy development and implementation.

While private water corporations and water bottlers may not have an absolute conflict of interest with human rights, health and environmental protection, it is dangerous to assume that what is most profitable for their shareholders will automatically be in the public interest. Best practices must include safeguarding public policy on water and sanitation against this potential conflict of interest, which is a business and social reality.

4) Transparency is fundamental to democratic governance. Governments must be transparent in their interactions with the private sector on issues related to access to safe drinking water and sanitation, and mandate disclosure by corporations of the impact of their business operations on water and of their engagement with water policy.

Because water is essential to life, transparency and disclosure around water issues are of paramount importance. People have a right to know about governments’ obligations to protect the human right to water and people’s access to safe drinking water and sanitation, about the activities of corporations that affect our right and access to water, and about the health, economic and environmental consequences of corporate practices such as water bottling and privatization.

The FCTC strengthens international right-to-know laws by calling on governments to disclose a high level of information regarding the tobacco industry and its dangerous products. Transparency measures in the FCTC Article 5.3 guidelines should be recognized as precedents, adapted and applied as best practices on water issues, for example:

• Ensuring transparency of government interactions with the private sector, through public hearings, public notice of interactions and disclosure of records.
• Requiring disclosure by corporations of information related to public access to safe drinking water and sanitation, including business operations and political activities.
• Imposing mandatory penalties on corporations for the provision of false or misleading information.

Thank you for your consideration of these recommendations. We welcome the opportunity to meet with you, and would be happy to provide additional background or clarification.

Sincerely,

Kathryn Mulvey
International Policy Director