Corporate obligations under the human right to water.

• Author: Cernic, Jernej Letnar

Almost a billion people do not have access to clean and safe water. Access to safe drinking water and sanitation is increasingly being considered a fundamental human right. Corporations play an important role in the realization of the right to water. For example, they can become violators of the right to water where their activities deny access to clean and safe water or where water prices increase without warning. Corporations can have a positive or negative impact on the human rights of individuals, wider communities and indigenous peoples. This paper argues that corporations bear a certain responsibility for the realization of the human right to water, which can be derived from international as well as national (constitutional) law. Corporate obligations under the human right to water can potentially be based on the right to water as set in national law and in the international human rights treaties and in corporate codes of conduct. It is asserted that this responsibility is different and separate from the responsibility of state governments and should never undermine state obligations to observe the human right to water. In short, the paper argues that corporations have an obligation to respect, protect and fulfil the right to water deriving primarily from national legal orders.

1. INTRODUCTION

   The Niyamgiri Hills form a mountainous area in the Kalahandi and Rayagada districts of Orissa, in the eastern part of India. They are populated by the indigenous community of the Dongria Kondh, who consider the Hills sacred, as their daily lives have depended on them for several centuries. (1) In December 2008, the Indian government, more particularly its Ministry of Environment and Forests, approved a project to mine bauxite in the Niyamgiri Hills. (2) This project was proposed and will be conducted by a joint venture corporation, the South-West Orissa Bauxite Mining Corporation, involving two major corporations: Sterlite Industries India Limited, a subsidiary of Vedanta Resources Plc, and the state-owned Orissa Mining Corporation. (3) The proposed project has faced a number of human rights and environmental objections, not the least important of which relates to the exercise of the right to water. Amnesty International argues in its report that "findings ... clearly demonstrate that the refinery expansion and mining project have serious implications for the human rights of local communities, including their rights to water, food, health, work and an adequate standard of living." (4) In this respect, Amnesty International further notes that "the companies involved in the mine and refinery projects have ignored community concerns, breached state and national regulatory frameworks and failed to adhere to accepted international standards and principles in relation to the human rights impact of business." (5) It further describes that "the streams which originate from the top of the Hills are the only source of water for communities who live on top of the Hills and a major source for others who live lower down the hill." (6) As a consequence, "any negative impacts on the streams ... could have disastrous consequences for the communities, most of whom are completely dependent on this water in order to continue to live on the Hills." (7)

   The situation in the Niyamgiri Hills is illustrative and poses a number of pertinent questions relating to corporate human rights obligations under the right to water. What happens when a corporation deprives individuals of their access to water? Or when thousands of people suffer from the lack of a safe drinking water supply in water management systems operated by a corporation? Or where a corporation has rapidly increased the price of water after water privatization? Do corporations have normative obligations under the human right to water? If so, what is the nature and scope of such obligations? Nolan and Taylor aptly note that "it is no longer a revelation that companies have some responsibility to uphold human rights. The more pertinent issues are which rights and to what extent companies should be held to account." (8)

   The objective of this paper is to comprehensively demonstrate and analyze the existing scope and nature of corporate obligations deriving from the human right to water. Even though corporate responsibility for human rights may be still in the embryonic stages, this paper attempts to argue that corporations, or alternatively their officers, are already obliged to observe the human right to water. In other words, the point of this paper is to demonstrate that corporations have obligations to observe the right to water as part of a national and international value system.

   Economic, social and cultural fights include fights to housing, food, education, water and health. (9) This set of fights complements the so-called civil and political rights. (10) As Scheinin notes, "there is no water-tight division between different categories of human rights." (11) However, despite claims that both sets of fights are of equal importance and interdependent, civil and political fights are more solidly established under international and national law. (12) Economic, social and cultural rights generally have a programmatic nature and are not always directly justiciable to the same extent that civil and political rights are. (13) Scheinin argues that "the problem relating to the legal nature of economic and social rights does not relate to their validity but rather to their applicability." (14) The central question of economic and social fights therefore lies in their enforcement or justiciability.

   Corporations play an important role in the realization of the right to water and the rights of society as a whole. For example, they can become violators of the right to water when their activities deny access to clean and safe water or when water prices suddenly increase. Corporations can have a positive or negative impact on the human fights of individuals, wider communities and indigenous peoples. Marks and Clapham note that "changes in the organization of the global economy have greatly increased the role of business in generating outcomes that threaten human rights." (15) The Global Compact's CEO Water Mandate "recognizes that the business sector, through the production of goods and services, impacts water resources - both directly and through supply chains." (16) The preamble of the CEO Water Mandate notes:

   [T]he private sector has an important stake in helping to address the water challenge faced by the world today. It is increasingly clear that lack of access to clean water and sanitation in many parts of the world causes great suffering in humanitarian, social, environmental and economic terms, and seriously undermines development goals. (17) CERES argues in its recent report that "the vast majority of leading companies in water-intensive industries have weak management and disclosure of water-related risks and opportunities." (18) Without doubt, a number of positive human rights initiatives have so far been undertaken by several corporations and a number of them contribute to the creation of jobs, the stimulation of economic growth, and the raising of living standards. (19)

   Williams notes that "since the 1970s, alternatives have been sought because of problems with public water systems, including low service quality and coverage, inefficiency, corruption, low rates of cost recovery, low productivity, and high debt burden." (20) Privatization of water services has been offered as the right medicine to cure the problems of provision of water. (21) However, privatization of water services has stirred up a number of debates as to corporate responsibility to ensure availability, accessibility, affordability and quality of the human right to water. In this context, Petrova observes that "defenders of privatization point out that public utilities have largely failed to provide water access to those who most need it, namely the poor." (22) On the other hand, "privatizing water is likely to reduce access to clean water because of rate increases." (23) In contrast, Kent argues that "semiprivatization of water, carefully controlled by government, remains a plausible approach." (24)

   This paper argues that corporations bear a certain responsibility for the realization of the human right to water, which can be derived from international as well as from national constitutional law. It will be argued that corporate obligations can potentially be based on the right to water as set in national law and in international human rights treaties. This paper argues that corporations have an obligation to respect, protect and fulfil the right to water deriving primarily from national legal orders. It is submitted that the concept of corporate responsibility primarily derives legal authority from national legal orders as one of the sources of law. It does not undermine the proposition that the concept can also derive authority from other sources. The state is the primary source of legal authority for human rights obligations and the responsibility of corporations follows from the embryonic stage of development of binding international principles for corporations and their human rights obligations. Corporations are under obligations to comply with those norms.

   Even though legislation on corporate responsibility for the right to water already exists in many countries at a national level and sometimes even at the regional level, disparities in definition and scope and a piecemeal approach in implementation are problematic for an effective investigation and enforcement. As suggested above, national legal orders regulate corporate responsibility for human fights in a number of laws, which makes it difficult to have a clear and transparent landscape of the obligations of corporations in a particular legal order. This problem, however, can be addressed by introducing a uniform national law, which...